PSINet, Inc. v. Chapman , 362 F.3d 227 ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PSINET, INCORPORATED; 
CHARLOTTESVILLE SEXUAL HEALTH &
WELLNESS CLINIC; PORTICO
PUBLICATIONS, LTD., Publisher of
Charlottesville Weekly; SILVERCHAIR
SCIENCE COMMUNICATIONS,
INCORPORATED; VIRGINIA ISP
ALLIANCE; ROCKBRIDGE GLOBAL
VILLAGE; AMERICAN BOOKSELLERS
FOUNDATION FOR FREE EXPRESSION;
THE PERIODICAL AND BOOK
ASSOCIATION OF AMERICA,
INCORPORATED; FREEDOM TO READ
FOUNDATION; SEXUAL HEALTH
NETWORK; CHRIS FILKINS, Proprietor
of the Safer Sex Institute; HARLAN
 No. 01-2352
ELLISON; THE COMIC BOOK LEGAL
DEFENSE FUND; SUSIE BRIGHT; A
DIFFERENT LIGHT BOOKSTORES;
LAMBDA RISING BOOKSTORES;
BIBLIOBYTES; PEOPLE FOR THE
AMERICAN WAY,
Plaintiffs-Appellees,
and
UNITED STATES INTERNET SERVICE
PROVIDER ASSOCIATION,
Plaintiff,
v.

2 PSINET, INC. v. CHAPMAN
WARREN D. CHAPMAN, 
Commonwealth Attorney; JAMES L.
CAMBLOSS, III, Commonwealth 
Attorney,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CA-99-111-3)
Argued: October 28, 2002
Decided: March 25, 2004
Before NIEMEYER, Circuit Judge,
James R. SPENCER, United States District Judge for the
Eastern District of Virginia, sitting by designation, and
Andre M. DAVIS, United States District Judge for the
District of Maryland, sitting by designation.
Affirmed by published opinion. Judge Spencer wrote the opinion.
Judge Davis wrote a concurring opinion. Judge Niemeyer wrote a dis-
senting opinion.
COUNSEL
ARGUED: William Henry Hurd, State Solicitor, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellants.
Thomas W. Kirby, WILEY, REIN & FIELDING, L.L.P., Washing-
ton, D.C., for Appellees. ON BRIEF: Jerry W. Kilgore, Attorney
General of Virginia, Alison P. Landry, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
PSINET, INC. v. CHAPMAN 3
Appellants. Garrett M. Smith, MICHIE, HAMLETT, LOWRY, RAS-
MUSSEN & TWEEL, P.C., Charlottesville, Virginia; Michael A.
Bamberger, SONNENSCHEIN, NATH & ROSENTHAL, New York,
New York; Elliot M. Mincberg, Lawrence S. Ottinger, PEOPLE FOR
THE AMERICAN WAY FOUNDATION, Washington, D.C.; Robert
M. O’Neil, J. Joshua Wheeler, THE THOMAS JEFFERSON CEN-
TER FOR THE PROTECTION OF FREE EXPRESSION, Char-
lottesville, Virginia, for Appellees.
OPINION
SPENCER, District Judge:
This matter is before the Court on the Defendants’ appeal of the
Western District of Virginia’s grant of Summary Judgment in favor
of the Plaintiffs. At issue is the constitutionality of Va. Code Ann.
Section 18.2-391 (Michie Supp. 1999) (amended 2000), which crimi-
nalizes the dissemination of material harmful to minors over the Inter-
net. The District Court found the statute invalid under both the First
Amendment and the Commerce Clause. For the reasons discussed
below, the District Court’s ruling granting summary judgment and
striking down the statute is AFFIRMED.
I. Background
Plaintiffs represent a spectrum of businesses, membership organi-
zations, and individuals who use the Internet1 to communicate, dis-
play, and to seek access to a broad range of speech. Plaintiffs
communicate online both within and from outside the Commonwealth
of Virginia, and Plaintiffs’ speech is accessible both within and out-
1
We do not recite here the specifics of how the Internet functions;
where necessary, we describe any relevant features of the Internet in our
analysis of this case. We note that the general contours of the Internet
have been described in various other judicial opinions. See Reno v.
ACLU, 521 U.S. 844, 849-57 (1997); Cyberspace, Communications, Inc.
v. Engler, 55 F. Supp. 2d 737, 740-44 (E.D. Mich. 1999); American
Libraries Ass’n. v. Pataki, 969 F. Supp. 160, 164-67 (S.D.N.Y. 1997);
Shea v. Reno, 930 F. Supp. 916, 925-34 (S.D.N.Y. 1996).
4 PSINET, INC. v. CHAPMAN
side of Virginia. Plaintiffs all fear that their online speech could be
considered "harmful to juveniles" in some communities under Vir-
ginia Code section 18.2-391, despite the fact that their speech may
receive full constitutional protection as to adults. Plaintiffs facially
challenged the constitutionality of section 18.2-391 and were granted
a permanent injunction by the United States District Court for the
Western District of Virginia enjoining the enforcement of the statute.
Since 1970, Virginia has prohibited the knowing display in "brick
and mortar" space, of commercial materials that are harmful to juve-
niles. Va. Code Ann. § 18.2-391 (Michie Supp. 1999) (amended
2000). In 1985, Virginia amended the statute, making it also unlawful
"to knowingly display" these materials "in a manner whereby juve-
niles may examine and peruse" them. 1985 Va. Acts, ch. 506. Several
plaintiffs brought suit challenging the 1985 amendment as facially
unconstitutional on the grounds that it was impermissibly vague and
violated the First Amendment. After a tortuous path through the
courts, the statute was eventually upheld by the Fourth Circuit in light
of a narrowing construction accorded to the statute by the Supreme
Court of Virginia. American Booksellers Ass’n v. Virginia, 882 F.2d
125, 126 (4th Cir. 1989).
The statute was reenacted as amended in 1999 to include electronic
files or messages, and was again reenacted as amended in 2000. The
statute in its present form makes it unlawful to "sell, rent or loan to
a juvenile" or to knowingly display for commercial purposes in a
manner whereby juveniles may examine and peruse:
1. Any picture, photography, drawing, sculpture, motion
picture film, electronic file or message containing an image,
or similar visual representation or image of a person or por-
tion of the human body which depicts sexually explicit
nudity, sexual conduct or sadomasochistic abuse and which
is harmful to juveniles, or
2. Any book, pamphlet, magazine, printed matter however
reproduced, electronic file or message containing words, or
sound recording which contains any matter enumerated in
subdivision 1 of this subsection, or explicit and detailed ver-
bal descriptions or narrative accounts of sexual excitement,
PSINET, INC. v. CHAPMAN 5
sexual conduct or sadomasochistic abuse and which, taken
as a whole, is harmful to juveniles.
Va. Code Ann. § 18.2-391 (Michie Supp. 1999) (amended 2000)
(emphasis added). A violation of section 18.2-391 is a Class I misde-
meanor.
The 2000 Amendment adds the following:
[I]f a person uses services of an Internet service provider or
an electronic mail service provider in committing acts pro-
hibited under this subsection, such Internet service provider
or electronic mail service provider shall not be held respon-
sible for violating this subsection.
Va. Code Ann. § 18.2-391 (Michie Supp. 1999) (amended 2000). The
amendment creates a defense for Internet service providers (ISPs) and
email service providers when a person violating the statute uses an
ISP or email service provider as the medium through which to dis-
seminate prohibited material. The ISP or email service provider, how-
ever, would be liable if it disseminated the material itself as opposed
to serving as the gateway through which the material passes.
In relation to the statute, Virginia Code section 18.2-390(6),
defines the term "harmful to juveniles" as:
that quality of any description or representation, in whatever
form, of nudity, sexual conduct, sexual excitement, or sado-
masochistic abuse, when it
(a) predominately appeals to the prurient, shameful or
morbid interest of juveniles,
(b) is patently offensive to prevailing standards in the
adult community as a whole with respect to what is suitable
material for juveniles, and
(c) is, when taken as a whole, lacking in serious literary,
artistic, political or scientific value for juveniles.
6 PSINET, INC. v. CHAPMAN
Section 18.2-390(7) defines "knowingly" as:
having general knowledge of, or reason to know, or a belief
or ground for belief which warrants further inspection or
inquiry of both (a) the character and content of any material
described herein which is reasonably susceptible of exami-
nation by the defendant, and (b) the age of the juvenile, pro-
vided, however, that an honest mistake shall constitute an
excuse from liability hereunder if the defendant made a rea-
sonable bona fide attempt to ascertain the true age of such
juvenile.
The relevant "community" whose standards govern what is harmful
is undefined, as is "commercial purpose."
Plaintiffs filed their Complaint and Motion for Preliminary Injunc-
tion in the United States District Court for the Western District of Vir-
ginia in December of 1999. The Honorable James H. Michael, Jr.,
United States District Court Judge, granted Plaintiffs’ Motion for Pre-
liminary Injunction by Order and Memorandum Opinion on August
10, 2000. Plaintiffs then filed a Motion for Summary Judgment Grant-
ing Final Injunction, which the District Court granted on October 11,
2001. The Commonwealth appealed the summary judgment decision.
This Court accepted the appeal and oral arguments were scheduled
on October 28, 2002. On January 21, 2003, this Court certified the
following questions of law to the Supreme Court of Virginia:
A. Would the use of any of the technological access con-
trols identified by the Attorney General of Virginia preclude
conviction under Virginia Code § 18.2-391 as amended in
1999?
B. Does the prohibition against knowingly displaying por-
nographic materials that are "harmful to juveniles" apply to
displays made only in connection with the sale, rental, or
loan of such materials? If not, what must the government
establish to prove that a defendant has knowingly displayed
such material "for commercial purpose"?
PSINET, INC. v. CHAPMAN 7
PSINet, Inc. v. Chapman, 317 F.3d 413, 419 (4th Cir. 2003). On Sep-
tember 12, 2003 the Supreme Court of Virginia advised this Court
that pursuant to Rule 5:42 it would not furnish answers to the certified
questions because the answers would not be outcome determinative.
The Commonwealth argues two issues on appeal. First, that Ameri-
can Booksellers is binding precedent in this case and therefore, the
statute should not be subject to another facial challenge. Second, that
the District Court erred in granting Plaintiffs’ Motion for Summary
Judgment and request for Final Injunction. Because we find that a
facial challenge to the statute is appropriate given the facts of this
case and that Plaintiffs were entitled to summary judgment and a final
injunction, we AFFIRM the District Court’s ruling.
II. Analysis
A. Plaintiffs’ Facial Challenge
The Commonwealth argues that the 1999 Act did not enlarge the
scope of section 18.2-391 and that this Court’s binding precedent in
American Booksellers, precludes another facial challenge. The pre-
1999 version of the statute, which did not explicitly reference elec-
tronic materials, contained two "catch-all" provisions. In reference to
harmful print materials, explicitly including books, pamphlets, etc.,
the statute included the catch-all provision "however reproduced." In
reference to harmful representational materials, the statute included
the catch-all provision "or similar visual representation or image."
According to the Commonwealth, electronic materials, both print and
representational, fit comfortably within these two catch-all provisions
and the 1999 amendment merely explicitly included electronic materi-
als that were already implicitly encompassed by the statute.
The Commonwealth’s arguments, however, are misguided. We
agree with the District Court that a reading of section 18.2-391 illus-
trates that the catch-all phrases do not cover Internet material. It is
disingenuous for the Commonwealth to argue that when the 1985 ver-
sion of the statute was adopted the Virginia legislature intended to
regulate the vast Internet material of today. Especially given that the
legislature felt compelled to amend the Act in 1999 to include "elec-
8 PSINET, INC. v. CHAPMAN
tronic file[s] or message[s] containing words . . . and . . . images." Va.
Code Ann. § 18.2-391 (Michie Supp. 1999) (amended 2000).
General principles of statutory construction require a court to con-
strue all parts to have meaning and to reject constructions that render
a term redundant. See Reiter v. Sonotone Corp., 442 U.S. 330, 339
(1979) (where the Supreme Court explained that a court is "obliged
to give effect, if possible, to every word"); Platt v. Union Pacific R.R.
Co., 99 U.S. 48, 58-59 (1878) (if a construction renders a term redun-
dant, that is a reason for rejecting that construction); Virginia v.
Browner, 80 F.3d 869, 877 (4th Cir. 1996) (a court should not "con-
strue a statute in a manner that reduces some of its terms to mere sur-
plusage"); United States v. Snider, 502 F.2d 645, 652 (4th Cir. 1974)
(all parts of a statute must be construed so that each part has mean-
ing); McLean Bank v. Nelson, 232 Va. 420, 427, 350 S.E.2d 651, 656
(1986) (Virginia statutory interpretation requires that all words of a
statute be given meaning where possible). The Virginia legislature’s
decision to amend section 18.2-391 to include electronic communica-
tions was not a redundant act simply including an area already cov-
ered by the Act, but was an affirmative step making the Act
applicable to Internet communication. Thus the amendment was
clearly a purposeful extension of the Act to a new area of communica-
tion, and Plaintiffs may facially challenge the Acts constitutionality
as reenacted.
Furthermore, this Court’s decision in American Booksellers does
not preclude Plaintiffs’ facial challenge. In American Booksellers v.
Virginia, 882 F.2d 125 (4th Cir. 1989) this Court only considered
whether non-obscene adult materials could be displayed and sold to
adults in stores so long as sellers did not "knowingly afford [ ] juve-
niles an opportunity to peruse harmful materials." Id. at 127. After the
Supreme Court of the United States certified questions to the Supreme
Court of Virginia, this Court concluded that the 1985 Act merely
required booksellers to segregate a few works onto a shelf located
where bookstore personnel would notice inappropriate juvenile inter-
est while carrying out their regular duties. See id. at 127.
Moreover, this Court’s First Amendment analysis in American
Booksellers dealt with traditional bookstores at physical locations and
does not apply to the "unique and wholly new medium of worldwide
PSINET, INC. v. CHAPMAN 9
human communication" that is the Internet. Reno, 521 U.S. at 850.
Nor does selling adult books and magazines in a fixed location raise
the Commerce Clause concerns that state regulation of the Internet
raises. See Jack L. Goldsmith & Alan O. Sykes, The Internet and the
Dormant Commerce Clause, 110 Yale L.J. 785, 824 (2001).
One facial challenge of a statute does not preclude another chal-
lenge of an amended statute on different grounds. Plaintiffs were per-
mitted to bring a facial challenge of Virginia Code section 18.2-391
(Michie Supp. 1999) as amended and the District Court’s decision
enjoining section 18.2-391 was proper.
B. The District Court’s Grant of Summary Judgment
On October 11, 2001, the District Court granted Plaintiffs’ Motion
for Summary Judgment and entered a Final Injunction against the
enforcement of section 18.2-391. A motion for summary judgment
should be granted only if there is no genuine dispute as to an issue
of material fact and the moving party is entitled to judgment as a mat-
ter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). All facts and reasonable inferences must be
interpreted in the light most favorable to the non-moving party. See
Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990). However,
summary judgment is appropriate "where the facts and the law will
reasonably support only one conclusion." Hawkins v. PepsiCo, Inc.,
203 F.3d 274, 279 (4th Cir. 2000)(quoting McDermott Int’l, Inc. v.
Wilander, 498 U.S. 337, 356 (1991)). This Court reviews the grant or
denial of summary judgment de novo. Hodge v. Jones, 31 F.3d 157,
163 (4th Cir. 1994). In that the undisputed material facts and law rea-
sonably support only one conclusion in the case at hand, we AFFIRM
the District Court’s grant of summary judgment.
1. First Amendment Analysis
The District Court held that in seeking to restrict the access of
minors to indecent material on the Internet, section 18.2-391 imposes
an unconstitutional burden on protected adult speech. As a content-
based restriction on expression, the statute may only be upheld if it
survives strict scrutiny. United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803 (2000) (applying strict scrutiny to a law
10 PSINET, INC. v. CHAPMAN
restricting explicit programming); Reno I, 521 U.S. at 870 (applying
strict scrutiny to regulation of Internet speech). Strict scrutiny requires
the law in question to be 1) narrowly tailored to 2) promote a compel-
ling government interest. Playboy, 529 U.S. at 813.
The government has the burden of showing that a content-based
regulation of speech "is necessary to serve a compelling state inter-
est." First Nat’l Bank v. Bellotti, 435 U.S. 765, 786, 788-89 (1978).
It is clear that the government’s interest in protecting minors from
sexually explicit Internet materials is compelling. See Ginsberg v.
New York, 390 U.S. 629, 639 (1968) (recognizing New York’s com-
pelling interest in limiting the availability of sexual material to
minors); FCC v. Pacifica Found., 438 U.S. 726, 749 (1978) (recog-
nizing the government’s interest in limiting the broadcast of offensive
words dealing with sex that was accessible to children). The question
then becomes whether the Act is narrowly tailored so that it may pass
strict scrutiny.
Both sides concede that the 1999 Act is not narrowly tailored if it
effects a total ban on the display of all "electronic file[s] or mes-
sage[s]," containing "harmful" words, images or sound recordings,
that juveniles may "examine and peruse," as the plain language of the
statute seems to indicate. See Va. Code Ann. § 18.2-391 (Michie
Supp. 1999) (amended 2000). To save the statute from unconstitution-
ality the Commonwealth proposes certain statutory interpretations.
However, even with the Commonwealth’s creative constructions, the
statute remains unconstitutionally overbroad or becomes impotent and
thus unconstitutional under the First Amendment.
The Constitution provides significant protection "from overbroad
laws that chill speech within the First Amendment’s vast and privi-
leged sphere." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244
(2002). Under the doctrine of overbreadth, a statute violates the First
Amendment if it prohibits a substantial amount of protected expres-
sion. Id. In that section 18.2-391 penalizes a substantial amount of
speech that is constitutionally protected, it violates the First Amend-
ment.
Several courts have struck down general bans and blanket restric-
tions on Internet speech deemed harmful to juveniles as unconstitu-
PSINET, INC. v. CHAPMAN 11
tionally overbroad. The Commonwealth suggests that we interpret
section 18.2-391 as regulating only Internet speech occurring within
the Commonwealth of Virginia. However, other statutes with that
same geographic restriction have been struck down as impermissibly
chilling to protected speech. See generally, American Libraries Ass’n.
v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). Attempting to localize
Internet regulation is extremely problematic because the Internet "by
its nature has no local areas." Charles Nesson & David Marglin, The
Day the Internet Met the First Amendment: Time and the Communi-
cations Decency Act, 10 Harv. J.L. & Tech. 113, 131 (1996).
Other courts have explained that:
[A]n Internet user cannot foreclose access to her work from
certain states or send differing versions of her communica-
tion to different jurisdictions. In this sense, the Internet user
is in a worse position than the truck driver or train engineer
who can steer around Illinois or Arizona, or change the
mudguard or train configuration at the state line; the Internet
user has no ability to bypass any particular state. The user
must thus comply with the regulation imposed by the state
with the most stringent standard or forego Internet commu-
nication of the message that might or might not subject her
to prosecution.
Pataki, 969 F. Supp. at 183. In fact, based on the pleadings of the par-
ties and the findings of other federal courts, the District Court found
that for "most communications over the Internet, the speaker has little
or no effective control over whether minors or adults are able to gain
access to his communications." Dist. Ct. Op. J.A. at 298 (citing Reno,
521 U.S. at 855-56). The District Court found that "speakers who
publish on the Web generally make their materials publicly available
to users around the world, regardless of age, and lack any practical
or reliable means for preventing minors from gaining access to the
information on their sites or for verifying the true age of users of their
Web sites." Id. The District Court went further to explain that the
Internet is:
[W]holly insensitive to geographic distinctions, and Internet
protocols were designed to ignore rather than to document
12 PSINET, INC. v. CHAPMAN
geographic location. While computers on the Internet do
have "addresses," they are addresses on the network rather
than geographic addresses in real space. Most Internet
addresses contain no geographic information at all. An
Internet user who posts a Web page in one state cannot read-
ily prevent residents of other states from viewing that page,
or even discern in which state visitors to the site reside.
Dist. Ct. Op. J.A. at 298 (citing Pataki, 969 F. Supp. at 170). In that
Internet speakers have no way of preventing Virginia juveniles from
accessing their Internet speech, the "severity of criminal sanctions
may well cause speakers to remain silent rather than communicate
even arguably unlawful words, ideas, and images." Reno, 521 U.S. at
872. In an attempt to deny minors access to potentially harmful
speech, section 18.2-391 will "effectively suppress[ ] a large amount
of speech that adults have a constitutional right to receive and to
address to one another." Id. at 874. Individuals who wish to commu-
nicate images that might fall within the statute’s proscriptions must
thus self-censor or risk prosecution. It is this type of regulation, of
otherwise protected speech, that other courts have consistently struck
down as unconstitutional.
The Commonwealth asks the Court to read other propositions into
section 18.3-391 under the guise of narrowing constructions. The
Commonwealth suggests that section 18.2-391 be read as providing
a defense when a Web site requires an adult PIN number for access.
Under the Commonwealth’s construction of section 18.2-391, a
Web site employing a security screen requiring an adult PIN will be
immune from prosecution. These PINs can be obtained through adult
PIN registration services online, or the Web site could distribute PINs
itself. An adult would obtain a PIN by providing a credit card number
to the service.2 Dist. Ct. Op. J.A. at 13-14.
2
It is assumed only adults will have credit cards because only adults
are contractually obligated to pay back credit card charges. But see,
Reno, 521 U.S. at 881-82 (where the Supreme Court questioned the
validity of a PIN number defense because the appellants failed to estab-
lish that a PIN number system would adequately screen out juveniles).
PSINET, INC. v. CHAPMAN 13
The Commonwealth argues that an affirmative defense for PIN
numbers must be read into section 18.2-391 in light of the Supreme
Court of Virginia’s previous narrowing construction in Common-
wealth v. American Booksellers Ass’n., 236 Va. 168, 178, 372 S.E.2d
618, 624-25 (1988). The Supreme Court of Virginia explained that to
prove a violation under section 18.2-391, in the context of a physical
bookstore, "the Commonwealth would have the burden of proving
beyond a reasonable doubt that the defendant bookseller knowingly
afforded juveniles an opportunity to peruse harmful materials, or took
no reasonable steps to prevent such perusal when the juvenile’s
opportunity was reasonably apparent to the bookseller." Id. (emphasis
in original). The Commonwealth is persuaded and urges upon the
Court that the language, "reasonable steps to prevent such perusal,"
in the 1988 American Booksellers decision should be construed as
allowing an affirmative PIN number defense to the 1999 amendment
of the Act.
The general principle is that "every reasonable construction must
be resorted to, in order to save a statute from unconstitutionality."
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const.
Trades Council, 485 U.S. 568, 575 (1988). However, only if a statute
is "readily susceptible" to a narrowing construction will the court
apply such a construction to save an otherwise unconstitutional law.
Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 397
(1988). The Supreme Court has explained that narrowing construc-
tions are only appropriate when "the text or other source of congres-
sional intent" identifies a clear line that a court could draw. Reno, 521
U.S. at 884. Courts must be careful not to invade upon the legislative
domain and a court should never "rewrite a law to conform it to con-
stitutional requirements." See Reno, 521 U.S. at 884-85.
The Commonwealth’s PIN number defense is not "readily suscepti-
ble" from the text or any other source of congressional intent. Such
a reading adding an affirmative PIN number defense might be possi-
ble if not for the Virginia legislature’s decision to explicitly state the
defenses applicable to section 18.2-391. In 2000, just one year after
it enacted the language making section 18.2-391 applicable to Internet
communication, the Virginia legislature went back and amended sec-
tion 18.2-391 to explicitly add the one defense that it intended to
include. The 2000 amendment limits the liability of ISPs and email
14 PSINET, INC. v. CHAPMAN
service providers who simply serve as a medium through which an
offender disseminates prohibited material, but says nothing regarding
the liability of commercial Web sites that use PIN numbers. Va. Code
Ann. § 18.2-391 (Michie Supp. 1999) (amended 2000).
Furthermore, using the Supreme Court of Virginia’s language in
American Booksellers, there is no indication that the use of a PIN
number would be considered a "reasonable step" to prevent "reason-
ably apparent" perusal by juveniles. As the Plaintiffs have previously
pointed out, the Commonwealth would certainly not agree that a
liquor or tobacco store that sold to anyone with a valid credit card
number, without some additional step to ascertain the age of the cus-
tomer, was taking reasonable steps to exclude juveniles from the pur-
chase of age prohibitive products. Other courts have questioned both
the reasonableness and effectiveness of credit card verification, and
there is no indication that the Virginia legislature intended to adopt
PIN number verifications as an affirmative defense to section 18.2-
391. This Court has no authority to include an affirmative defense to
section 18.2-391 where the Virginia legislature has given no indica-
tion (explicit or implicit) that it intended to include said defense.
Finally, the Commonwealth’s PIN number solution to the statute’s
First Amendment problems creates First Amendment problems of its
own. The District Court explained that the stigma associated with the
content of these Internet sites may deter adults from visiting them if
they cannot do so without the assurance of anonymity. The Court
pointed out that many adults may be unwilling to provide their credit
card number online, and would therefore not visit the site. Such a
restriction would also serve as a complete block to adults who wish
to access adult material but do not own a credit card. Such require-
ments would unduly burden protected speech in violation of the First
Amendment.3
3
The dissent cites to Ashcroft v. ACLU, 535 U.S. 564, 583 n. 14
(2002), for the proposition that the Supreme Court has recognized "adult
identification screens" as a feasible Internet alternative. The Court in
Ashcroft, however, focused exclusively on the use of "community stan-
dards" to screen "obscene" Internet speech, an area that falls outside the
purview of the First Amendment. The Court in Ashcroft explicitly stated
that it did not "express any view" as to whether the Child Online Protec-
tion Act, and its use of adult identification screens, would survive a strict
scrutiny analysis. Ashcroft, 535 U.S. at 585-86.
PSINET, INC. v. CHAPMAN 15
The District Court was correct in its conclusion that requiring adult
Web sites to utilize PIN numbers would unconstitutionally chill free
speech. In that the Commonwealth’s proposed construction would
still render section 18.2-391 unconstitutional under the First Amend-
ment, it would make no sense for this Court to adopt that construc-
tion.
The Commonwealth also asks this Court to construe section 18.2-
391 in a manner that would virtually exempt bulletin boards and chat
rooms from its regulations. The Commonwealth correctly points out
that the 2000 amendment to section 18.2-391 limits the liability of
service providers who do nothing more than set up the Internet chat
room or bulletin board. See Va. Code Ann. § 18.2-391 (Michie Supp.
1999) (amended 2000). The amendment does not, however, exempt
the speakers who post material in chat rooms and on bulletin boards.
The Commonwealth admits that individual speakers who post mes-
sages in chat rooms or on bulletin boards for "commercial purposes"
will still be subject to regulation under section 18.2-391. The Com-
monwealth seems to suggest that the number of Internet users
engaged in this type of speech is so small that a ban on this commer-
cial speech in these forums is permissible.4 However, the number of
individuals engaged in a particular type of speech is not determinative
of whether First Amendment protections must be afforded to that type
of speech.
As the District Court pointed out, participants in online chat rooms
and discussion groups have no way to tell when participants from
another state join the conversation or whether that participant is a
minor. Dist. Ct. Op. J.A. at 299. As such, speakers could never
engage in commercial adult speech in these types of forums without
subjecting themselves to the possibility of criminal liability. In
essence, speech that receives complete protection as to adults could
never be engaged in unless the particular chat room or bulletin board
completely banned juveniles.5 Furthermore, banning juveniles from
4
The Commonwealth makes this argument in spite of the fact that the
term speech for "commercial purposes" remains undefined by section
18.2-391.
5
The Commonwealth has been unable to suggest any equivalent to the
adult verification measures currently available to commercial Web site
operators that could be utilized by individuals wishing to engage in pro-
tected commercial speech in chat rooms or on bulletin boards.
16 PSINET, INC. v. CHAPMAN
these particular formats would prevent them from accessing the bene-
ficial materials, i.e. non-sexually explicit materials, they contain. By
the Commonwealth’s own admission, section 18.2-391 cannot be con-
strued in a way that completely exempts chat rooms and bulletin
boards. The blanket prohibition of adult commercial speech that the
statute imposes violates the First Amendment.
Even if the Court completely construed section 18.2-391 in the
manner that the Commonwealth requests, such a construction would
leave the Act virtually powerless. When the government defends a
regulation of speech as a means to redress past harms or prevent
anticipated harms, it must do more than simply "posit the existence
of the disease sought to be cured." Turner Broad. Sys. v. F.C.C., 512
U.S. 622, 664 (1994) (quoting Quincy Cable TV, Inc. v. FCC, 768
F.2d 1434, 1455 (D.C. Cir. 1985)). "It must demonstrate that the
recited harms are real, not merely conjectural, and that the regulation
will in fact alleviate these harms in a direct and material way." Id. at
624; see also Edenfield v. Fane, 507 U.S. 761, 770-71
(1993)(explaining that the burden is on the party seeking to uphold a
restriction on commercial speech to "demonstrate that the harms it
recites are real and that its restriction will in fact alleviate them to a
material degree"); Los Angeles v. Preferred Communications, Inc.,
476 U.S. 488, 496 (1986) (explaining that a "[c]ourt may not simply
assume that the ordinance will always advance the asserted state inter-
ests sufficiently to justify its abridgment of expressive activity").
Where strict scrutiny applies, a statute that "leaves appreciable dam-
age to th[e] supposedly [compelling] interest" uncorrected is invalid.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 547 (1993) (internal citations omitted). Even commercial speech
regulation "may not be sustained if it provides only ineffective or
remote support for the government’s purpose." Central Hudson Gas
& Electric Corp. v. Public Service Comm’n of N.Y., 447 U.S. 557,
564 (1980).
In order to avoid being too burdensome on protected speech, the
statute cannot, by the Commonwealth’s own admission, protect Vir-
ginia juveniles from foreign or out-of-state Internet materials, regulate
non-commercial Internet materials, or regulate materials posted on
bulletin boards or in chat rooms. Given the nature of the Internet, such
a construction would leave section 18.2-391 virtually powerless. In
PSINET, INC. v. CHAPMAN 17
the District Court’s findings, it explained that "Communications on
the Internet do not ‘invade’ an individual’s home or appear on one’s
computer screen unbidden. Rather, the receipt of information
‘requires a series of affirmative steps more deliberate and directed
than merely turning a dial.’" Dist. Ct. Op. J.A. at 296 (quoting Reno,
521 U.S. at 854). As the District Court noted at oral argument, there
is no benefit to a law which merely reduces the number of porno-
graphic responses to an Internet search by a juvenile from 186,000
responses to 183,000 responses (hypothetically). J.A. at 908.
There is no indication that technology exists to track Web sites or
Web site users in a manner that would give section 18.2-391 any bite.
There is also no indication that a significant amount of harmful mate-
rial available to juveniles in Virginia originates within the Common-
wealth or comes from individuals who would be subject to the
Commonwealth’s jurisdiction.6 Furthermore, section 18.2-391 only
regulates commercial Web sites, leaving a significant number of
equally harmful, non-commercial Web sites, that could be screened
by current Internet filtering technology, un-regulated. See J.A. at 447.
In essence, the Commonwealth has failed to demonstrate in any
way that section 18.2-391 passes Constitutional muster. Using the
plain language of section 18.2-391 and banning the display of all
"electronic file[s] or message[s]," containing "harmful" words, images
or sound recordings, that juveniles may "examine and peruse," is not
a narrowly tailored solution and is unconstitutionally overbroad. On
the other hand, using the proposed narrowing constructions renders
section 18.2-391 powerless and therefore constitutes an impermissible
regulation of speech under the First Amendment. See Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546
(1993). Under either approach, section 18.2-391 unconstitutionally
chills free speech and therefore violates the First Amendment.
6
See ACLU v. Reno, 929 F. Supp. 824, 882-83 (E.D. Pa. 1996)
(explaining that "[n]early half of Internet communications originate out-
side the United States, and some percentage of that figure represents por-
nography," and that "[p]ornography from, say, Amsterdam will be no
less appealing to a child on the Internet than pornography from New
York City, and residents of Amsterdam have little incentive to comply
with the CDA.")
18 PSINET, INC. v. CHAPMAN
2. Commerce Clause Analysis
Not only may the District Court’s decision be upheld based on sec-
tion 18.2-391’s violation of the First Amendment, the decision may
be upheld on the separate ground that the statute violates the Com-
merce Clause. The negative implication of the Commerce Clause (the
Dormant Commerce Clause), U.S. Const. Art. I., § 8, cl. 3, includes
a prohibition on state regulation that "discriminates against or unduly
burdens interstate commerce and thereby imped[es] free private trade
in the national marketplace." General Motors Corp. v. Tracy, 519
U.S. 278, 287 (1997) (quoting Reeves, Inc. v. Stake, 447 U.S. 429,
437 (1980)). Several courts have struck down state statutes similar to
Virginia Code section 18.2-391 as unduly burdensome on interstate
commerce because they, in effect, restrict commercial electronic
materials in all states, not just the state in which the statute was
enacted. For example, in American Libraries Ass’n v. Pataki, 969 F.
Supp. 160 (S.D.N.Y. 1997), the District Court found that because
there was no effective way to limit access to online materials by geo-
graphic location, a Web site owner operating legally in California
would have to comply with New York’s law to avoid being subject
to liability there. Id. at 174. This may deter the California Web site
from placing its material on the Internet, thereby affecting legitimate
commerce outside of New York. At the least, the California Web site
would have to incur the expense of complying with New York’s law
if it were willing to post the materials at all (because materials acces-
sible online in California are equally accessible online in New York).
Adopting the rationale of Pataki, the District Court rejected the
Commonwealth’s arguments and analyzed section 18.2-391 as a
direct regulation of interstate commerce. The Commonwealth attacks
the conclusion reached by the District Court and argues that the stat-
ute should be construed narrowly to comply with the Dormant Com-
merce Clause. The Commonwealth argues that it should "be
presumed . . . that a legislative body . . . did not intend to give its
enactments an impermissible extra-territorial operation." 82 C.J.S.
Statutes § 310. The Commonwealth argues that the statute must be
read not to have an impermissible effect unless the language of the
statute makes such a reading impossible. See Planned Parenthood v.
Camblos, 155 F.3d 352, 383 (1998).
PSINET, INC. v. CHAPMAN 19
The Commonwealth asserts that through such a narrow construc-
tion the statute would not govern the "broad array of out-of-state Web
sites" that have no contact with Virginia "other than being accessible
here." The logical conclusion of this argument is that the statute
would only govern Web sites based in-state or Web sites with some
other form of sufficient contacts with Virginia more substantial than
merely being accessible here. The Commonwealth does not specify
what those types of contacts might be.
As the District Court pointed out, the nature of the Internet itself
makes the Commonwealth’s proposed construction nearly impossible.
"The unique nature of the Internet highlights the likelihood that a sin-
gle actor might be subject to haphazard, uncoordinated, and even out-
right inconsistent regulation by states that the actor never intended to
reach and possibly was unaware were being accessed." Pataki, 969 F.
Supp. at 168. Given the broad reach of the Internet, it is difficult to
see how a blanket regulation of Internet material, such as section
18.2-391, can be construed to have only a local effect. See Reno, 521
U.S. at 887-95 (Justice O’Connor, concurring in part and dissenting
in part) (discussing the difficulty in applying principles of zoning law
to the Internet).
However, even if the Commonwealth’s limiting construction were
applied, the Act would nonetheless be an invalid indirect regulation
of interstate commerce because the burdens it imposes on interstate
commerce are excessive in relation to the local benefits it confers. In
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), the Supreme Court
set forth the balancing test applicable to indirect regulations of inter-
state commerce. The two-fold inquiry first looks at the legitimacy of
the state’s interest and secondly weighs the burden on interstate com-
merce in light of the local benefit derived from the statute. Pike, 397
U.S. at 142. There is no question that Virginia has a compelling inter-
est in protecting the physical and psychological well-being of minors.
The local benefits of such a statute, however, have not been proven.
By construing the Act so that it only reaches intrastate communica-
tion, the Commonwealth again finds itself in the same conundrum as
it did in its First Amendment analysis. If the Commonwealth is capa-
ble of limiting its Internet regulation as not to directly offend the
Commerce Clause, then it will have no local benefit given the vast
20 PSINET, INC. v. CHAPMAN
number of other communication options available to a juvenile seek-
ing them.
Even if section 18.2-391 can be construed in a manner that does
not directly violate the Commerce Clause, the statute still fails under
the Dormant Commerce Clause analysis of Pike v. Bruce Church. The
District Court was correct in granting Plaintiffs’ Motion for Summary
Judgment because section 18.2-391 violates the Commerce Clause.
III. Conclusion
The content of the Internet is analagous to the content of the night
sky. One state simply cannot block a constellation from the view of
its own citizens without blocking or affecting the view of the citizens
of other states. Unlike sexually explicit materials disseminated in
brick and mortar space, electronic materials are not distributed piece-
meal. The Internet uniformly and simultaneously distributes its con-
tent worldwide. As the District Court noted, there may some day be
sufficient technology to render this statute constitutional. However, in
light of current technology, the statute cannot be reasonably construed
to meet both First Amendment and Commerce Clause challenges. The
District Court was correct in granting Plaintiffs’ Motion for Summary
Judgment and granting a permanent injunction against section 18.2-
391. Therefore, the District Court’s decision is hereby
AFFIRMED.
DAVIS, District Judge, concurring:
Indubitably, as all agree, government has a compelling interest in
protecting children from harm. Were I participating in this case as the
doting grandfather that I am proud to be, I would eagerly embrace the
result reached by the dissent. Shedding my familial role, however, as
I must, for my proper role as judge, I am pleased to join Judge Spen-
cer’s opinion.
The Commonwealth’s contention that a facial challenge to the
amended statute is foreclosed on the basis of stare decisis is a legal
formalism that I find wholly unpersuasive. For the reasons stated in
PSINET, INC. v. CHAPMAN 21
the majority opinion, it simply could not be more clear that the Vir-
ginia legislature amended the statute exactly because the prior law did
not reach electronic media. I do not believe resolution of the compel-
ling overbreadth claims asserted by plaintiffs in this case can or
should be avoided in this way.
On the merits, the majority opinion is unwaveringly faithful to
extant First Amendment and Commerce Clause principles. Perhaps it
is true, as Justice Holmes famously stated, that hard cases sometimes
make bad law, and certainly, as we all know, rapid advances in tech-
nology sometimes make hard cases. E.g., Kyllo v. United States, 533
U.S. 27 (2001)(holding that use of a thermal imaging device to mea-
sure heat escaping from a residence constitutes a search of the resi-
dence); Ashcroft v. Free Speech Coalition, 535 U.S. 234(2000)(finding unconstitutional certain provisions of the Child Por-
nography Prevention Act of 1996, 18 U.S.C. §§ 2251 et seq.). But the
majority opinion makes no law at all, good or bad. Rather, it simply
applies settled law to new facts, and it does so in a manner that is con-
sonant with and well within the boundaries of the judicial function.
It is no answer to the plaintiffs’ claims that, to achieve its assuredly
compelling interest in protecting children from exposure to online
pornography, Virginia has done the best that available technological
know-how allows. In a related context, the Supreme Court has cau-
tioned that "[t]he Government may not suppress lawful speech as the
means to suppress unlawful speech. Protected speech does not
become unprotected merely because it resembles the latter." Id. at
255. Similarly, the online dissemination of protected speech may not
be criminalized (a surefire form of suppression) merely because such
speech might be accessible to Virginia’s inadequately-supervised
minors. Thus, Virginia’s effort to do for parents and guardians what
they— without the constraints imposed by constitutional prohibitions
— are free (and better able) to do for themselves, fails. Nor may Vir-
ginia reach beyond her border to suppress online speech everywhere,
even if such an attempt had any plausible prospects of success, which
of course it does not.
It may be that the Supreme Court will one day undertake the task
of creating a new metric of speech protection for the "Age of the
Internet," but it has not done so to date. Accordingly, I fully concur
in the opinion affirming the judgment of the district court.
22 PSINET, INC. v. CHAPMAN
NIEMEYER, Circuit Judge, dissenting:
Acting under its police powers, the Commonwealth of Virginia
enacted Virginia Code § 18.2-391 making it unlawful "to knowingly
display for commercial purpose" pornographic materials that are
harmful to juveniles "in a manner whereby juveniles may examine
and peruse" them. Va. Code Ann. § 18.2-391(a) (1985). Materials
were designated to include any visual representation or image, any
printed matter however reproduced, and any sound recording. Id.In 1988, the Supreme Court of Virginia construed the scope of this
statute narrowly, see Commonwealth v. Am. Booksellers Ass’n, Inc.,
372 S.E.2d 618 (Va. 1988), and based on this narrow construction, we
held the statute to be constitutional against a First Amendment chal-
lenge, see Am. Booksellers Ass’n, Inc. v. Virginia, 882 F.2d 125, 127-
28 (4th Cir. (1989) (concluding that the statute "places a minimal bur-
den on booksellers and represents a constitutionally permissive exer-
cise of the state’s police powers"), cert. denied, Virginia v. Am.
Booksellers Ass’n, Inc., 494 U.S. 1056 (1990).
Virginia amended § 18.2-391 in 1999 to make it explicit that the
specified examples of visual, written, and recording media that were
regulated included any "electronic file or message." Va. Code Ann.
§ 18.2-391(A) (1999).
This action was commenced to mount a renewed facial First
Amendment challenge to this statute, as amended in 1999. On plain-
tiffs’ motion for summary judgment, the district court held that the
statute violated the First Amendment, as well as the dormant Com-
merce Clause, of the U. S. Constitution, and permanently enjoined
enforcement of the statute in the electronic medium. On appeal, the
majority now affirms.
For the reasons that follow, I disagree and therefore respectfully
dissent. First, we rejected a facial First Amendment challenge to this
statute in American Booksellers, 882 F.2d 125, and that ruling now
binds us in this case, compelling us to uphold the constitutionality of
the statute against this second facial challenge. Second, even if we
conduct the First Amendment analysis again, I would find the statute
constitutional because (1) Virginia has a compelling interest in pro-
PSINET, INC. v. CHAPMAN 23
tecting its juveniles from harmful pornographic materials, (2) the Vir-
ginia statute employs the least restrictive alternative that will promote
Virginia’s interest, especially in view of the Virginia Supreme Court’s
authoritative construction of the statute, and (3) by application of
minimally burdensome technology that is now available, no speech
among adults is suppressed. I would also conclude that the statute
does not violate the dormant Commerce Clause. Accordingly, I would
reverse the judgment of the district court and vacate the injunction
that the district court entered against enforcement of Virginia Code
§ 18.2-391.
I
When first enacted in 1970, Virginia Code § 18.2-391 applied only
to the sale, rental, or loan of pornographic material deemed "harmful
to juveniles." Virginia modeled its statute on a New York statute
upheld against a First Amendment challenge by the Supreme Court
in Ginsberg v. New York, 390 U.S. 629 (1968).
In 1985, Virginia amended § 18.2-391 to prohibit not only the sale,
rental, or loaning of material deemed "harmful to juveniles," but also
to the knowing display of such materials for commercial purpose. In
amended form, the statute provided:
(a) It shall be unlawful for any person knowingly to sell,
rent or loan to a juvenile, or to knowingly display for com-
mercial purpose in a manner whereby juveniles may exam-
ine and peruse:
1. Any picture, photography, drawing, sculpture, motion
picture film, or similar visual representation or image of a
person or portion of the human body which depicts sexually
explicit nudity, sexual conduct or sadomasochistic abuse
and which is harmful to juveniles, or
2. Any book, pamphlet, magazine, printed matter how-
ever reproduced, or sound recording which contains any
matter enumerated in subdivision (1) of this subsection, or
explicit and detailed verbal descriptions or narrative
24 PSINET, INC. v. CHAPMAN
accounts of sexual excitement, sexual conduct or sadomas-
ochistic abuse and which, taken as a whole, is harmful to
juveniles.
Va. Code Ann. § 18.2-391(a) (emphasis added to identify statutory
language inserted by amendment) ("1985 Version").
The 1985 Version of the statute became the subject of a First
Amendment challenge that produced five opinions by the U.S.
Supreme Court, the Supreme Court of Virginia, and our court, but in
the end it was held not to violate the First Amendment.
When we first reviewed the 1985 Version of the statute, conducting
a review of a facial challenge, we held that the 1985 Version "dis-
courage[d] the exercise of first amendment rights in a real and sub-
stantial fashion, in that it [was] not readily subject to a narrowing
interpretation so as to withstand an overbreadth challenge." Am.
Booksellers Ass’n, Inc. v. Virginia, 802 F.2d 691, 696 (4th Cir. 1986)
("American Booksellers I"). Although Virginia stressed that "only a
small percentage of the inventory in book stores could be classified
as harmful to juveniles" and therefore that "retail outlets [could] read-
ily modify their display methods to comply with the amendment," we
rejected Virginia’s characterizations. Id. We ruled that "[t]he display
methods suggested by the Commonwealth appear[ed] either insuffi-
cient to comply with the amendment or unduly burdensome on the
first amendment rights of adults . . . ." Id. We reasoned that "[p]lacing
‘adults only’ tags on books and magazines or displaying the restricted
material behind blinder racks or on adults only shelves freely accessi-
ble in the main part of the store would not stop any determined juve-
nile from examining and perusing the materials." Id. Further,
"[f]orcing a bookseller to create a separate, monitored adults only sec-
tion, requiring that the materials be sealed, or taking the materials off
display and keeping them ‘under the counter’ unreasonably inter-
fere[d] with the booksellers’ right to sell the restricted materials and
the adults’ ability to buy them." Id.On review, the U.S. Supreme Court concluded that the Virginia
Supreme Court’s construction of the statute might better determine
the statute’s constitutionality: "[A]n authoritative construction of the
Virginia statute by the Virginia Supreme Court would substantially
PSINET, INC. v. CHAPMAN 25
aid our review of [the] constitutional holding, and might well deter-
mine the case entirely." Virginia v. Am. Booksellers Ass’n, Inc., 484
U.S. 383, 386 (1988). The Court accordingly certified two questions
regarding interpretation of the 1985 Version to the Supreme Court of
Virginia, pursuant to Rule 5:42 of the Virginia Supreme Court. Id. at
398. Focusing on the scope of the law’s coverage, the United States
Supreme Court asked in its first question:
Does the phrase "harmful to juveniles" as used in Virginia
Code §§ 18.2-390 and 18.2-391 (1982 and Supp. 1987),
properly construed, encompass any of the books introduced
as plaintiffs’ 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?
Id. at 398. Virginia argued that none of the 16 books that were sub-
mitted by the plaintiffs as books covered by the statute were in fact
covered by the statute. It maintained that the reach of the statute was
much narrower. Id. at 393-94. The U.S. Supreme Court noted that
"[i]f that is true, methods of compliance exist that are substantially
less burdensome than those discussed by the lower courts." Id. at 394.
The Court concluded that "it is essential that we have the benefit of
the law’s authoritative construction from the Virginia Supreme
Court." Id. at 395.
In the second question, the U.S. Supreme Court focused on what
compliance measures potential defendants could take to avoid running
afoul of the law’s prohibition. Accordingly, the Supreme Court posed
as its second question:
What meaning is to be given to the provision of Virginia
Code § 18.2-391(a) (Supp. 1987) making it unlawful "to
knowingly display for commercial purpose in a manner
whereby juveniles may examine or peruse" certain materi-
als? Specifically, is the provision complied with by a plain-
tiff 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?
26 PSINET, INC. v. CHAPMAN
If not, would the statute be complied with if the store’s pol-
icy were announced or otherwise manifested to the public?
484 U.S. at 398. Whereas the plaintiffs alleged that compliance with
the law would require drastic measures such as reconfiguring the store
or completely barring minors from the store, Virginia argued that "a
bookseller will not be subject to criminal prosecution if, as a matter
of store policy, the bookseller prevents a juvenile observed reviewing
covered works from continuing to do so, even if the restricted materi-
als are not segregated." Id. at 396. The U.S. Supreme Court explained
the importance of the second question: "If this is what the statute
means, the burden to the bookseller, and the adult book buying public,
is significantly less than that feared and asserted by plaintiffs." Id. at
397.
The Supreme Court of Virginia accepted the certified questions and
responded to the first question, applying the three-part test set forth
in the statute, Va. Code Ann. § 18.2-390(6), defining the term "harm-
ful to juveniles."* Commonwealth v. Am. Booksellers Ass’n, Inc., 372
S.E.2d 618 (Va. 1988). As to the first two prongs of the test, the court
recognized that they presented questions of fact for determination by
a properly instructed jury. Id. at 623. The third prong, however, was
found to involve a mixed question of law and fact that the court could
properly decide. Id. The court concluded that "if a work is found to
have a serious literary, artistic, political or scientific value for a legiti-
mate minority of normal, older adolescents, then it cannot be said to
lack such value for the entire class of juveniles taken as a whole." Id.
at 624. The Virginia court then concluded that none of the books sub-
mitted by the plaintiffs as exhibits lacked serious literary, artistic,
*Quoting Virginia Code § 18.2-390(6):
"Harmful to juveniles" means that quality of any description or
representation, in whatever form, of nudity, sexual conduct, sex-
ual excitement, or sadomasochistic abuse, when it (a) predomi-
nantly appeals to the prurient, shameful or morbid interest of
juveniles, (b) is patently offensive to prevailing standards in the
adult community as a whole with respect to what is suitable
material for juveniles, and (c) is, when taken as a whole, lacking
in serious literary, artistic, political or scientific value for juve-
niles.
PSINET, INC. v. CHAPMAN 27
political, or scientific value for a legitimate minority of older, normal
adolescents, and thus none of the books were "harmful to juveniles"
within the meaning of Va. Code Ann. § 18.2-390(6). Id.The Supreme Court of Virginia also provided a narrow construc-
tion of the 1985 Version in responding to the certified question focus-
ing on compliance measures. The court explained that the scienter
requirement in the statute was significant:
A violation must consist of proof beyond a reasonable doubt
that [1] the bookseller knowingly afforded juveniles an
opportunity to peruse harmful materials in his store or, [2]
being aware of facts sufficient to put a reasonable person on
notice that such opportunity existed, took no reasonable
steps to prevent the perusal of such materials by juveniles.
372 S.E.2d at 625. Again, the court stated, "[r]easonable efforts to
prevent perusal of harmful materials by juveniles are all that the stat-
ute requires of a bookseller." Id. According to the Virginia court,
"[t]he question whether a bookseller’s efforts were reasonable, in any
given set of circumstances is, of course, an issue of fact to be resolved
by a properly-instructed jury, but certain general principles may be
discerned." Id. The court then provided "a clear example of a method
a bookseller might easily adopt" to avoid violating the statute. Id. If
a bookseller placed all restricted books on a shelf in the sight of the
bookseller and intervened whenever a juvenile attempted to peruse
and examine books on that shelf, then the bookseller would be in
compliance with the statute. Id. Finally, with the assumption that "the
hypothetical bookseller ‘who has a policy of not permitting juveniles
to examine and peruse materials covered by the statute’ does not
merely cerebrate upon such a policy, but takes reasonable steps to put
it into effect," the court answered the second certified question in the
affirmative. Id. According to the Virginia Supreme Court, the 1985
Version "imposes a relatively light burden upon the bookseller, in
contrast to the state’s interest in protecting juveniles from materials
harmful to them." Id.Upon receipt of the Supreme Court of Virginia’s answers to the
two certified questions, the U.S. Supreme Court vacated our decision
in American Booksellers I and remanded the case to us for reconsider-
28 PSINET, INC. v. CHAPMAN
ation of the case in light of the Virginia Supreme Court’s answers
construing the statute narrowly. Virginia v. Am. Booksellers Ass’n,
Inc., 488 U.S. 905 (1988).
In view of the Virginia Supreme Court’s construction of the statute,
we reversed our previous conclusion that the 1985 Version was
unconstitutional under the First Amendment. Am. Booksellers Ass’n,
Inc. v. Virginia, 882 F.2d 125, 126 (4th Cir. 1989) ("American Book-
sellers II"). We noted that the Supreme Court of Virginia’s explana-
tion that "the 1985 amendment was not aimed at mere browsing but
at ‘the opportunity [a bookseller] may afford to juveniles to take off
the shelves books which they are unable to buy, and to read them in
the store.’" Id. at 127. Most importantly, we stated that we "agree
with the Virginia Supreme Court that the amendment to the statute
places a minimal burden on booksellers and represents a constitution-
ally permissive exercise of the state’s police powers." Id. at 127-28.
The 1985 Version was thus ultimately held constitutional against a
facial First Amendment challenge. The Supreme Court denied the
petition for a writ of certiorari. Am. Booksellers Ass’n, Inc. v. Vir-
ginia, 494 U.S. 1056 (1990).
To clarify the all-inclusiveness of § 18.2-391 — which applied to
any visual representation or image, any printed matter however repro-
duced, and any sound recording — and to make explicit that visual,
written, or sound-recorded materials include those created or trans-
mitted electronically, Virginia amended the statute in 1999 to specify
that a visual representation or image includes an "electronic file or
message containing an image" and that printed matter however repro-
duced includes an "electronic file or message containing words." 1999
Va. Acts ch. 936 (codified as Va. Code Ann. § 18.2-391(A)) (the
"1999 Amendment").
The plaintiffs commenced this action as a second facial challenge
of § 18.2-391 in view of the clarifying 1999 Amendment. Contending
that the statute is unconstitutional under the First Amendment and
under the dormant Commerce Clause of the U.S. Constitution, they
allege that the 1999 Amendment extended the reach of the 1985 Ver-
sion of the statute from physical space into cyberspace and that,
because of the nature of the Internet, the 1999 Amendment is not suf-
ficiently precise to withstand strict scrutiny under the First Amend-
PSINET, INC. v. CHAPMAN 29
ment. They also allege that Virginia’s regulation imposes an undue
burden on interstate commerce because the effect of the statute is to
restrict commercial electronic materials in all states, not just Virginia,
for which the statute was enacted. Because the plaintiffs filed this
action before enforcement of § 18.2-391 as amended in 1999, there
are no facts to govern its application in this case. The plaintiffs could
and did allege only how they believed they would be affected by
enforcement of the statute. The plaintiffs are businesses that provide
Internet access (e.g., PSINet, the Commercial Internet Exchange
Association); businesses that provide content transmitted over the
Internet (e.g., Charlottesville Sexual Health & Wellness Clinic, A
Different Light Bookstores); individuals who provide content trans-
mitted over the Internet (e.g., Susie Bright); and membership organi-
zations representing individuals whose access to pornographic
materials would be limited by the law (e.g., People for the American
Way).
The district court granted the plaintiffs’ motion for summary judg-
ment and permanently enjoined Virginia from enforcing Virginia
Code § 18.2-391 "to the extent it prohibits the sale, rental, loan or dis-
play of an ‘electronic file or message containing an image’ or an
‘electronic file or message containing words.’" PSINet, Inc. v. Chap-
man, 167 F. Supp. 2d 878, 892 (W.D. Va. 2001). In doing so, the
court ruled that the extension of the law to the Internet created a vio-
lation of the First Amendment where there previously had been none.
As the district court explained:
The pre-amendment version of section 18.2-391 applied
only to traditional media in physical spaces, and thus made
it possible to restrict minors’ access to indecent material
without substantially burdening adult access. . . . [T]he same
cannot be said for material on the Internet. That is, efforts
to comply with the 1999 [Amendment] will result in the
exclusion of too many adults from accessing material to be
constitutionally sound.
Id. at 887. The district court also held that the 1999 Amendment vio-
lated the dormant Commerce Clause. As the court explained:
[S]tate laws regulating cyberspace pornography currently
impose a much greater burden on out-of-state businesses
30 PSINET, INC. v. CHAPMAN
providing adult material on the Internet than state laws regu-
lating real-space pornography imposed on out-of-state adult
magazine publishers and other real-space pornography pro-
viders. . . . Thus, to avoid prosecution, an adult Web site
operator must comply with the most restrictive state obscen-
ity regulations if it is to make its content available on the
Web at all. . . . This leads the court to conclude that, due to
the current status of geographic filtering technology on the
Internet, § 18.2-391 violates the Commerce Clause.
Id. at 891.
From the district court’s permanent injunction entered against Vir-
ginia on October 11, 2001, prohibiting enforcement of the 1999
Amendment, Virginia appealed.
II
The Commonwealth of Virginia contends first that American Book-
sellers II, 882 F.2d 125, which rejected a facial challenge to the stat-
ute on vagueness and First Amendment grounds, precludes this
second facial challenge to the extent that this challenge is also based
on the First Amendment. It acknowledges that American Booksellers
II does not preclude consideration of the dormant Commerce Clause
issue, nor would it preclude a later "as applied" claim filed by persons
who were not party to the American Booksellers case. But Virginia
notes correctly that this case is not an "as applied" claim, but a second
facial challenge.
The district court rejected Virginia’s position, citing three reasons.
First, the court observed that "common sense tells a reader of the stat-
ute that the initial catch-all phrases of the statute do not cover Internet
materials." PSINet, Inc. v. Chapman, 108 F. Supp. 2d 611, 620 (W.D.
Va. 2000). The court pointed out that "printed matter however repro-
duced" in the statute "refers to printed matter — not electronic mate-
rial." Id. Second, the district court noted that when the 1985 Version
was enacted, "Internet communication was not envisioned." Id. And
third, it asserted that by making the change, the Virginia legislature
must be "presumed to act with purpose" and therefore it "add[ed]
something entirely different to the statute." Id. at 620-21.
PSINET, INC. v. CHAPMAN 31
As amended in 1985, § 18.2-391 makes unlawful a commercial
transaction through which pornographic material harmful to juveniles
is sold, rented, loaned, or displayed. The media that are included in
the 1985 statute are: "Any picture, photography, drawing, sculpture,
motion picture film, or similar visual representation or image" and
"[a]ny book, pamphlet, magazine, printed matter however reproduced,
or sound recording." Va. Code Ann. § 18.2-391(a) (1985). In reading
this statute in a common sense manner, the district court seemed to
have been focused on "printed matter" and did not recognize the
breadth of the statute, which not only includes very specific media as
examples but which also indicates an intent to cover all media that
may be seen, read, or heard. Stripped of the examples provided, the
statute prohibits the transference of pornographic material harmful to
juveniles through any "visual representation or image," any "printed
matter however reproduced," and any "sound recording." The obvious
focus of the Virginia legislature was on all media that reach the eyes
or ears of juveniles. Thus, when the Virginia legislature added as
another example of those media, the electronic medium "containing
an image" or "containing words," it was not adding substance to the
previous intended language of any "visual representation or image,"
any "printed matter however reproduced," and any "sound recording."
Surely, the original statutory language would include harmful mate-
rial displayed on video tape played on a television or created by elec-
tronic means, such as a digital camera. I respectfully submit that
common sense — rather than suggesting an interpretation restricted
to any medium that does not include the electronic medium — sug-
gests that the Virginia legislature always intended to include all
media, and when it added the electronic medium to the list of exam-
ples included, it was simply clarifying the statute for the increasingly
pervasive electronic age. There is no indication that the 1985 Version
was intended to exclude any medium then in place or thereafter possi-
ble. Rather, the defining criteria were visual material, words, and
sound.
The district court’s observation that the Internet could not have
been envisioned by the legislature in 1985 and therefore it was neces-
sary to add the reference to electronic medium is unfounded for two
reasons. First, it is apparent historically that in 1985, the distribution
of pornography by tape recordings and computers was already a prob-
lem and that at least one state legislature had already addressed it and
32 PSINET, INC. v. CHAPMAN
others were addressing it. See Computer Pornography and Child
Exploitation Act of 1985, S. 1305, 99th Cong. (1985); Computer Por-
nography and Child Exploitation Act: Hearings on S. 1305 Before the
Subcomm. on Juvenile Justice of the Senate Comm. on the Judiciary,
99th Cong. 17 (1985) (testimony of Kenneth V. Lanning, FBI Special
Agent, describing the use of computer bulletin boards by pedophiles
to communicate with one another); 1982 Cal. Stat. c.936, at 3395
(amending section 313 of the California Penal Code by adding "com-
puter program" to the list of media capable of disseminating harmful
matter to children); D’Vera Cohn, Kiddy Porn Enters Computer Age,
United Press International, Dec. 8, 1982 (describing the increasing
use of computers and video recorders by child pornographers); Police
Uncover Child Pornography Ring, Associated Press, Feb. 6, 1980
(reporting arrest of suspect "accused of plotting a national and possi-
bly worldwide computerized child pornography scheme").
Second, a statute that uses clearly inclusive language is not ren-
dered inoperable for unanticipated circumstances that fall within the
scope of the language. For example, the Fourteenth Amendment pre-
scribes that no state may make any law denying "any person" "equal
protection of the laws." Yet no one anticipated at the time of its ratifi-
cation in 1868 that all of the privileges accorded to men must also be
accorded to women. Nonetheless, the unambiguous language of the
protection included women, and it is so construed today. This follows
the basic canon of statutory interpretation that we give the words in
text their natural meaning, and so long as that meaning is not ambigu-
ous, we presume that to be the intent of the legislature, even though
such intent might be historically questioned.
Finally, the district court reasoned that by making an amendment
in 1999, the Virginia legislature must have had a purpose. That pur-
pose, however, need not have been to make a substantive change
expanding the scope of the statute. An equally valid purpose would
have been to provide clarification to a statute that would be increas-
ingly applied to the electronic medium. Indeed, because of the preex-
isting all-inclusive language, it is reasonable to conclude that the 1999
Amendment was only a clarification and not an expansion of the stat-
ute’s proscription.
Yet the majority accepts the reasoning of the district court in reject-
ing the applicability of American Booksellers II and, indeed, chooses
PSINET, INC. v. CHAPMAN 33
to reverse it. My independent review of this issue does not permit me
to join a ruling rejecting the application of binding precedent.
It is readily apparent to me that our decision in American Booksell-
ers II has binding force on the question whether Virginia Code
§ 18.2-391 is constitutional under the First Amendment. The argu-
ments that were made in that first facial challenge are the same that
are now made in this case, and the reasons on which we relied in
American Booksellers II to reject those arguments also now apply
here.
In American Booksellers I, the challenge to the statute was a facial
challenge based on vagueness and on violation of the First Amend-
ment. In our first review, we concluded, as did the district court in this
case, that § 18.2-391 was unconstitutional. When Virginia argued that
"retail outlets" selling pornography could "readily modify their dis-
play methods to comply" with the statute, we said that the methods
suggested were either "insufficient" or "unduly burdensome." Ameri-
can Booksellers I, 802 F.2d at 696 (emphasis added). We agreed with
the plaintiffs’ assertion "that the display provision of the [1985 Ver-
sion] will unreasonably restrict adult access to materials protected
under the first amendment," id. at 894, stating that the 1985 Version
discourages the exercise of first amendment rights in a real
and substantial fashion, and . . . it is not readily subject to
a narrowing interpretation so as to withstand an overbreadth
challenge.
Id. at 696. All of these grounds are parroted in this case by the district
court, and now by the majority.
On review of American Booksellers I, however, the Supreme Court
observed that if the statute could be construed narrowly, then it might
survive the constitutional challenge under the First Amendment. The
Court restated the standing constitutional principle applicable to facial
challenges that if "‘readily susceptible’ to a narrowing construction
that would make it constitutional, [a statute] will be upheld." Virginia
v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988) (citations
omitted). The Court accordingly certified to the Virginia Supreme
Court the question of whether the statute was to be construed nar-
34 PSINET, INC. v. CHAPMAN
rowly. When the Virginia Supreme Court indicated that the statute
should be narrowly construed to save it from invalidity, Common-
wealth v. Am. Booksellers Ass’n, Inc., 372 S.E.2d 618, 624-25 (Va.
1988), the U.S. Supreme Court vacated our holding in American
Booksellers I. On remand, we reconsidered our rulings in American
Booksellers I, and in light of Virginia’s authoritative construction of
the statute, we upheld it under the First Amendment. American Book-
sellers II, 882 F.3d at 127-28. We stated that the burden imposed in
§ 18.2-391 that no person shall "display for commercial purpose in a
manner whereby juveniles may examine and peruse" pornographic
materials harmful to juveniles "places a minimal burden on booksell-
ers and represents a constitutionally permissive exercise of the state’s
police powers." Id. Even though the argument leading to that lan-
guage was presented to us from a bookseller’s point of view, the anal-
ysis of the provision’s constitutionality and our holding were stated
more broadly, and they now clearly apply.
Since this is merely a renewed challenge in which the same First
Amendment arguments are made as were made in American Booksell-
ers II, albeit now presented to us by a purveyor using the electronic
medium, the holding of American Booksellers II is binding. With
respect to the book medium that we considered there, we necessarily
held that persons could not openly display books containing material
harmful to juveniles in an open air market, even though such a market
might be organized to sell books. We held that the implicit require-
ment imposed by the statute on booksellers (1) to conceal harmful
books from the public at large and (2) to reveal them only to adults
did not place an undue burden on the booksellers’ right to sell consti-
tutionally protected material. When our holding is considered in its
full breadth, it becomes apparent that it reaches any commercial pur-
veyor of harmful materials. Thus, under American Booksellers II, a
seller of harmful materials over the Internet or through any other
medium would have to conceal the harmful materials from the public
at large and reveal them only to adults. And in light of the technologi-
cal controls available to such commercial purveyors on the Internet
and now being used by them — as demonstrated in Part III, below —
the burden is not significantly different from that imposed on book-
sellers.
I therefore agree with Virginia that the First Amendment issue is
"settled" and that this second "First Amendment facial challenge is
PSINET, INC. v. CHAPMAN 35
foreclosed." But even on the merits under a strict-scrutiny analysis,
this facial challenge fails as did the first facial challenge.
III
The standard for our review is well known. A content-based
restriction on constitutionally protected speech is constitutional under
the First Amendment only if it survives strict scrutiny; it "must be
narrowly tailored to promote a compelling Government interest."
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813
(2000). "If a less restrictive alternative would serve the Government’s
purpose, the legislature must use that alternative." Id.The district court, as well as the parties, agree that Virginia has a
compelling interest in denying juveniles access to pornographic mate-
rials that are harmful to juveniles, as described by the statute — mate-
rials that depict "sexually explicit nudity, sexual conduct or
sadomasochistic abuse" or that contain "explicit and detailed" narra-
tives of "sexual excitement, sexual conduct or sadomasochistic
abuse." Va. Code Ann. § 18.2-391(A)(1), (2). The sole issue on the
plaintiffs’ facial challenge based on First Amendment grounds is
whether the 1999 Amendment is narrowly tailored to promote Virgin-
ia’s interest in denying juveniles access to pornographic materials
harmful to them.
Concluding that the statute was unconstitutional, the district court
did not identify any less restrictive alternative that would suggest that
the statute was not narrowly tailored. Indeed, the court appears to
have concluded that the statute was narrowly tailored but, even so,
that in balancing the burden imposed by the statute against the bene-
fits gained, the burden "outweighed" the benefits. Such a balancing
test, however, does not form part of the strict scrutiny analysis. When
it is accepted that the State’s restriction on speech promotes a compel-
ling governmental interest, the test that we must apply is whether the
restriction is narrowly tailored to promote the State’s interest. Play-
boy, 529 U.S. at 813.
Not only did the district court fail to identify a less restrictive alter-
native to promote Virginia’s compelling interest, it concluded that the
alternatives available were not unduly burdensome. As Virginia had
36 PSINET, INC. v. CHAPMAN
amply demonstrated in the record, the district court recognized that
credit card identification systems and PIN numbers, as well as age
verification services, are available and effective to restrict a zone of
the Internet to adults. Indeed, the district court found that "the costs
associated with implementing credit card screening devices and adult
PIN systems are unlikely to drive adult Web sites from the ‘market-
place of ideas.’ The fact that thousands of adult Web sites currently
utilize verification systems suggests that the burden associated with
maintaining such a system is outweighed by the continued consumer
demand for the content these Web sites provide." PSINet, Inc. v.
Chapman, 167 F. Supp. 2d 878, 888 (W.D. Va. 2001). The district
court acknowledged that because the Virginia statute is limited to
material displayed for a commercial purpose, the concerns expressed
in Reno v. ACLU, 521 U.S. 844, 865 (1997) (recognizing that the
New York statute held constitutional in Ginsberg v. New York, 390
U.S. 629 (1968), "applied only to commercial transactions"), were not
present in this case. PSINet, 167 F. Supp. 2d at 888. The district court
thus concluded explicitly that Virginia’s statute — the 1999 Amend-
ment — was not "overly burdensome on commercial Web sites." Id.This finding by the district court should have ended the strict-
scrutiny analysis under the First Amendment, with the conclusion that
the statute did not violate the Constitution. But the district court
reached an opposite conclusion, relying on a newly fabricated balanc-
ing test and on its further observation that the 1999 Amendment
does not include an affirmative defense to prosecution for
commercial Web sites if they in fact incorporate such com-
pliance measures. Thus, even the most responsible adult
Web sites may have legitimate concerns that they will be
subjected to criminal liability in the State of Virginia.
PSINet, 167 F. Supp. 2d at 888. The court thus held that the implicit
burden created by the threat of criminal prosecution would inappro-
priately "chill" the plaintiffs’ First Amendment rights. Id.Even as the district court’s analysis lies outside of the strict scru-
tiny analysis, the district court also misapprehended the liability
imposed by the Virginia statute — noting the absence of an affirma-
tive defense for reasonable compliance efforts — and therefore the
PSINET, INC. v. CHAPMAN 37
court miscalculated the extent of any "chilling" effect. The statute
includes the substance of such a defense as part of the State’s proof
in establishing a violation. It punishes persons who "knowingly dis-
play" materials harmful to juveniles. And the Virginia Supreme Court
has authoritatively interpreted this liability narrowly:
A violation must consist of proof beyond a reasonable doubt
that the bookseller knowingly afforded juveniles an opportu-
nity to peruse harmful materials in his store or, being aware
of facts sufficient to put a reasonable person on notice that
such opportunity existed, took no reasonable steps to pre-
vent the perusal of such materials by juveniles.
Commonwealth v. Am. Booksellers Ass’n, Inc., 372 S.E.2d 618, 625
(Va. 1988). Thus, to be liable under this statute, the prosecution
would have to show that commercial websites (1) knowingly permit-
ted juveniles an opportunity to peruse harmful materials, or (2) took
no reasonable steps to prevent such perusal when they were aware of
facts putting a reasonable person on notice of the possibility. Id. at
625. This hardly exposes commercial websites to the broad liability
feared by the district court.
As Virginia demonstrated in the record, just as booksellers could
create zones in their bookstores limited to adult materials and could
restrict the perusal and sales of those books to adults, websites can
create zones on the Internet limited in access to adults. No adult
would, through this process, be denied access to constitutionally pro-
tected speech. See Ginsberg, 390 U.S. at 638 & n.6. Rather, mini-
mally burdensome steps would have to be taken to create such adult
zones and to limit access to adults. The Supreme Court has recog-
nized the nexus between the availability of Internet filtering technol-
ogy and the maintenance of adult access to online pornographic
materials. See Reno v. ACLU, 521 U.S. 844, 876-77, 881-82 (1997).
In Reno, the Court credited the district court’s finding that "at the time
of trial existing technology did not include any effective method for
a sender to prevent minors from obtaining access to its communica-
tions on the Internet without also denying access to adults," id. at 876,
and the Court therefore commended the district court’s refusal "to
rely on unproven future technology to save the [Communications
Decency Act]," id. at 882.
38 PSINET, INC. v. CHAPMAN
But as Justice O’Connor pointed out, "it is possible to construct
barriers in cyberspace and use them to screen for identity, making
cyberspace more like the physical world and, consequently, more
amenable to zoning laws." Reno, 521 U.S. at 890 (O’Connor, J., con-
curring in the judgment in part and dissenting in part). In the context
of 1997, however, Justice O’Connor recognized that the necessary
technology was available but was too insufficiently dispersed on the
Internet to be relied upon for purposes of the Communications
Decency Act. As she put it, "Gateway technology is not ubiquitous
in cyberspace, and because without it ‘there is no means of age verifi-
cation,’ cyberspace still remains largely unzoned — and unzoneable."
Id. at 891. (O’Connor, J., concurring in the judgment in part and dis-
senting in part) (quoting ACLU v. Reno, 929 F. Supp. 824, 846 (E.D.
Pa. 1996)).
Yet, only five years later, when the Supreme Court reviewed Con-
gress’ next attempt to regulate Internet obscenity — the Child Online
Protection Act (COPA) — it recognized that a publisher of porno-
graphic materials on the Internet could target certain audiences and
"need only take the simple step of utilizing a medium that enables it
to target the release of its material into those communities." Ashcroft
v. ACLU, 535 U.S. 564, 583 (2002). Indeed, the Court recognized that
COPA did not "foreclose an entire medium of expression" on the
Internet because it "only requires that such material be placed behind
adult identification screens." Id. at 583 n.14. Thus, within five years’
time, the cyber-barriers that Justice O’Connor had referred to in Reno
had become widespread and effective.
And now, the district court in this case has concluded that techno-
logical mechanisms exist to create adult zones by using credit cards,
passwords, PIN identification, adult verification services, and website
self-identification methods. PSINet, 167 F. Supp. 2d at 887-88. More-
over, Virginia points out what the district court accepted and what the
Supreme Court recognized in Ashcroft v. ACLU:
In the world of web-based commercial pornography, "elec-
tronic screens" requiring credit card or age verification
devices are commonplace. So, too, are "teasers," hardcore
pornography strategically placed in front of such screens.
All commercial pornographers need to do to abide by Vir-
PSINET, INC. v. CHAPMAN 39
ginia law is to move these pre-existing "screens" so that
such screens appear before pornographic teasers are dis-
played.
Accord Ashcroft, 535 U.S. at 583 n.14 (citing "adult identification
screens" as a feasible Internet alternative).
To reach its conclusion that Virginia’s statute violates the First
Amendment, the majority relies on propositions that are unsupported
by the record or that are irrelevant to a determination of the scope of
the statute. For example, the majority says that "Internet speakers
have no way of preventing Virginia juveniles from accessing their
Internet speech." Ante at 12. Yet, as has been pointed out, Virginia
demonstrated and the district court accepted the fact that commercial
websites distributing pornography are using available technology
effectively to create adult zones to regulate access to their material.
See PSINet, 167 F. Supp. 2d at 888.
The majority also says that § 18.2-391’s "attempt to deny minors
access to potentially harmful speech . . . will ‘effectively suppress[ ]
a large amount of speech that adults have a constitutional right to
receive and to address to one another.’" Ante at 12 (quoting Reno, 521
U.S. at 874). Yet, there is no evidence in the record that the Virginia
statute will operate to suppress any speech among adults. Both Vir-
ginia and the district court recognized that adults functioning under
the statute will always have access to commercially purveyed porno-
graphic materials. The only question that arose was whether the
mechanisms for restricting access to adults was too burdensome. Just
as adults who want access to adult magazines and books must enter
a bookstore and demonstrate their age to the bookseller, Virginia has
demonstrated that adults wanting pornography from commercial pur-
veyors on the Internet must enter an adult zone through use of credit
cards, PINs, or other demonstrated technological gateways before
gaining access to adult material. Notably, the statute does not reach
non-commercial exchanges occurring in e-mail or chat-rooms.
To support its view that the statute overreaches in the scope of its
enforcement, the majority essentially discards the Virginia Supreme
Court’s holding that the statute is not violated if a website takes "rea-
40 PSINET, INC. v. CHAPMAN
sonable steps" to assure that juveniles are not perusing harmful mate-
rial. The majority says,
[T]here is no indication that the use of a PIN number would
be considered a "reasonable step" to prevent "reasonably
apparent" perusal by juveniles. As the Plaintiffs have previ-
ously pointed out, the Commonwealth would certainly not
agree that a liquor or tobacco store that sold to anyone with
a valid credit card number, without some additional step to
ascertain the age of the customer, was taking reasonable
steps to exclude juveniles from the purchase of age prohibi-
tive products.
Ante at 14. Yet Virginia demonstrated and the district court accepted
the facts that the use of credit cards, PINs, and age verification ser-
vices are minimally burdensome and that even today, they are used
effectively on the Internet.
The fact that thousands of adult Web sites currently utilize
adult verification systems suggests that the burden associ-
ated with maintaining such a system is outweighed by con-
tinued consumer demand for the content that these Web
sites provide. . . . [Moreover] commercial Web sites are less
likely than noncommercial sites to be so burdened by the
implementation of an adult identification system that they
are forced to withdraw their content from the Internet.
PSINet, 167 F. Supp. 2d at 888. Realizing that this evidence is in the
record and that the district court made the conclusions that it did, the
majority argues further, if not somewhat desperately, that "many
adults may be unwilling to provide their credit card number online,
and would therefore not visit the site. Such a restriction would also
serve as a complete block to adults who wish to access adult material
but do not own a credit card." Ante at 14. But so too are many adults
unwilling to enter an adult bookstore and ask for material protected
from juveniles. Moreover, we held in American Booksellers II that the
Virginia statute imposing these burdens on adults is constitutional
against the First Amendment challenge.
Finally, the majority falls back on the notion that if the statute
operates as Virginia suggests, the statute would be rendered "power-
PSINET, INC. v. CHAPMAN 41
less." Ante at 16. This effect, however, is a legislative judgment that
must be left to the Virginia legislature. Certainly by creating adult
zones for commercial websites that distribute pornography, the legis-
lation reduces the range and quantity of materials accessible to juve-
niles. It has been often stated that a legislature need not solve the
entire problem; it is free to take steps to solve only part of the prob-
lem. See, e.g., New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
At bottom, just as the Virginia statute has already been upheld for
constitutionality when argued from the point of a bookseller, who was
impliedly required to undertake minimally burdensome steps to deny
juveniles access to harmful materials while preserving access for
adults, a facial review now leads to the same conclusion when argued
from the point of view of a seller from an Internet website.
Virginia is justifiably concerned with the open and unrestricted dis-
play of pornographic materials harmful to juveniles, and it concededly
has a compelling interest in imposing restrictions on display of those
materials. The 1985 Version of § 18.2-391, as well as the 1999
Amendment, imposes restrictions on the display of such materials to
juveniles for commercial purposes, without denying adults any consti-
tutionally protected speech. See Ginsberg, 390 U.S. at 638 & n.6. And
this statute, as authoritatively construed by the Virginia Supreme
Court, provides a narrowly tailored response directed at commercial
purveyors of these harmful materials, directing that they may not
knowingly display such materials to juveniles and, if they are aware
that such juveniles are perusing such materials, they must take rea-
sonable steps to prevent the perusal. The State has identified the steps
that websites can reasonably take, and the district court properly
found those steps to be not unduly burdensome.
I would, therefore, uphold Virginia Code § 18.2-391(A) against the
First Amendment challenge made in this case.
IV
Finally, Virginia contends that the district court erred in finding
that § 18.2-391 violates the dormant Commerce Clause. The district
court held that the Virginia statute unduly burdens interstate com-
42 PSINET, INC. v. CHAPMAN
merce by placing restrictions on electronic commercial materials in
all states. The court stated:
State obscenity regulations are not invalidated under the
Commerce Clause because they impose compliance costs on
businesses located outside their state’s borders.
Nevertheless, state laws regulating cyberspace pornogra-
phy currently impose a much greater burden on out-of-state
businesses providing adult material on the Internet than state
laws regulating real-space pornography. . . . [T]o avoid
prosecution, an adult Web site operator must comply with
the most restrictive state obscenity regulations if it is to
make its content available on the Web at all. In contrast,
purveyors of real-space pornography can choose to comply
with the regulations of only those states to which they affir-
matively distribute. This leads the court to conclude that . . .
section 18.2-391 violates the Commerce Clause.
PSINet, 167 F. Supp. 2d at 891 (footnote omitted).
For statutes that do not facially discriminate against interstate com-
merce, the Supreme Court has adopted an analysis for determining
whether a State regulation unconstitutionally burdens interstate com-
merce:
Where the statute regulates even-handedly to effectuate a
legitimate local public interest, and its effects on interstate
commerce are only incidental, it will be upheld unless the
burden imposed on such commerce is clearly excessive in
relation to the putative local benefits. If a legitimate local
purpose is found, then the question becomes one of degree.
And the extent of the burden that will be tolerated will of
course depend on the nature of the local interest involved,
and on whether it could be promoted as well with a lesser
impact on interstate activities.
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (citation omit-
ted) (quoted in Oregon Waste Sys., Inc. v. Dep’t of Envtl. Quality of
Oregon, 511 U.S. 93, 99 (1994)).
PSINET, INC. v. CHAPMAN 43
There is no dispute in this case that Virginia has a "legitimate local
public interest" in denying juveniles pornography material deemed
harmful to them. Indeed, the parties, as well as the district court, agree
that Virginia has a compelling interest in regulating pornography
harmful to juveniles. The only question remaining is whether the bur-
den imposed by § 18.2-391 on interstate commerce is "clearly exces-
sive in relation to the putative local benefits." Pike, 397 U.S. at 142.
The district court’s own conclusions based on the demonstrated
technology appear to resolve this question readily. It found that the
compliance measures necessitated by § 18.2-391 are not "overly bur-
densome on commercial Web sites," PSINet, 167 F. Supp. 2d at 888,
and "are unlikely to have a substantial effect on commercial Web site
operators," id. at 889. The specific burden on First Amendment rights
that the district court determined would overwhelm Virginia’s com-
pelling interest was the denial of adult access to pornography, not
§ 18.2-391’s putative burden on interstate commerce.
Thus, I agree that Virginia has a compelling State interest in regu-
lating pornography harmful to juveniles within the jurisdictional lim-
its of its sovereignty, and the burden that § 18.2-391 would impose
on Internet purveyors would be minimal. I also agree with Virginia’s
observation that:
Website operators may still purvey pornography. Adults
seeking such material from the Internet may still readily
obtain it. All the [Virginia] law requires is that the harmful
materials — including free materials — be placed behind
the electronic screens already in use, rather than posted as
"teasers" in front of it.
Accordingly, I would uphold Virginia’s statute under the facial
challenge made pursuant to the dormant Commerce Clause.
V
Virginia has made a staunch attempt to promote its compelling
interest in denying juveniles access to harmful pornographic materials
while at the same time minimizing the burdens of its regulation on
44 PSINET, INC. v. CHAPMAN
adults. It began in 1970 by tailoring its statute after the Supreme
Court’s decision in Ginsberg. And when it amended this statute in
1985, it narrowly tailored the statute to comport with the First
Amendment, as we concluded in American Booksellers II. Finally,
when it amended the statute in 1999 to clarify its application to the
Internet, Virginia made clear that it was restricting the statute to com-
mercial efforts to purvey pornography, and then only to purveyors
who knowingly violated the law or who failed to take reasonable
steps when aware that the law was being violated. It also provided
immunity to Internet Service Providers. See 2000 Va. Acts ch. 1009
(now codified in Va. Code Ann. § 18.2-391(A)(2)).
If this narrowly tailored statute does not survive strict scrutiny,
then the conclusion must be drawn that States have no alternative but
to abandon efforts to regulate Internet-based pornography deemed
harmful to juveniles. Yet, the Supreme Court is not prepared to accept
this conclusion, nor is Virginia. To the contrary, the Supreme Court
has observed that with the appropriate technology, zones of adult
material can be created on the Internet as an appropriate form of regu-
lation. See, e.g., Ashcroft, 535 U.S. at 583 & n.14; Reno v. ACLU, 521
U.S. at 886-91 (O’Connor, J., concurring in the judgment in part and
dissenting in part).
Commercial websites distributing pornography on the Internet now
make use of technology that can be applied to comport with Virgin-
ia’s statutory requirements. They display free clips of their material
as "teasers" to entice the viewer to enter their adult zone and purchase
a complete viewing of this material. To enter the zone, however, the
viewer must provide credit and adult verification. Moreover, as Vir-
ginia demonstrated and the district court accepted, the fact that age
verification measures are now available and are being used with mini-
mal burden on e-commerce, it is difficult to conceive how these web-
site purveyors should complain when Virginia suggests that these
mechanisms could be employed to satisfy § 18.2-391. Conceptually,
pornographic websites today operate adult "e-bookstores" into which
they invite all adults, and they are controlling access to their adult
zones of cyberspace. This is hardly different from the "real-space" cir-
cumstances of a bookseller selling pornography.
I would reverse the judgment of the district court and uphold the
constitutionality of the statute. I therefore respectfully dissent.