ACLU v. Reno

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
6-22-2000
ACLU v. Reno
Precedential or Non-Precedential:
Docket 99-1324
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Recommended Citation
"ACLU v. Reno" (2000). 2000 Decisions. Paper 135.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/135
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Filed June 22, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 99-1324
AMERICAN CIVIL LIBERTIES UNION;
ANDROGYNY BOOKS, INC. d/b/a A DIFFERENT LIGHT
BOOKSTORES; AMERICAN BOOKSELLERS FOUNDATION
FOR FREE EXPRESSION; ARTNET WORLDWIDE
CORPORATION; BLACKSTRIPE; ADDAZI INC. d/b/a
CONDOMANIA; ELECTRONIC FRONTIER FOUNDATION;
ELECTRONIC PRIVACY INFORMATION CENTER; FREE
SPEECH MEDIA; INTERNET CONTENT COALITION;
OBGYN.NET; PHILADELPHIA GAY NEWS; POWELL'S
BOOKSTORE; RIOTGRRL; SALON INTERNET, INC.; WEST
STOCK, INC.; PLANETOUT CORPORATION
v.
JANET RENO, in her official capacity as
ATTORNEY GENERAL OF THE UNITED STATES
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 98-cv-05591)
District Judge: Honorable Lowell A. Reed, Jr.
Argued Thursday, November 4, 1999
BEFORE: NYGAARD, McKEE Circuit Judges and
GARTH, Senior Circuit Judge
(Opinion filed June 22, 2000)
David W. Ogden
Acting Assistant Attorney General
Michael R. Stiles
United States Attorney
Barbara L. Herwig
Jacob M. Lewis (Argued)
Charles Scarborough
Attorneys, Appellate Staff
Civil Division, Room 9120
Department of Justice
601 D Street, N.W.
Washington, D.C. 20530-0001
Attorneys for Appellant
Douglas A. Griffin
Christopher R. Harris
Catherine E. Palmer
Michele M. Pyle
Katherine M. Bolger
Latham & Watkins
885 Third Avenue
Suite 100
New York, New York 10022-4802
Christopher A. Hansen
Ann E. Beeson (Argued)
John C. Salyer
American Civil Liberties Union
125 Broad Street
New York, New York 10004
Attorneys for Appellee
American Civil Liberties Union
2
Stefan Presser
Christopher A. Hansen
Ann E. Beeson (Argued)
John C. Salyer
Suite 701
American Civil Liberties Union
125 South Ninth Street
Philadelphia, Pennsylvania 19107
Attorneys for Appellees
Androgyny Books, Inc., d/b/a
A Different Light Bookstores;
American Booksellers Foundation
for Free Expression;
Artnet Worldwide; Blackstripe;
Addazi, Inc., d/b/a Condomania;
Electronic Frontier Foundation;
Electronic Privacy Information Center;
Free Speech Media; Internet Content
Coalition; OBGYN.Net; Philadelphia
Gay News;
Powell's Bookstore; Riotgrrl;
Salon Internet, Inc.; West Stock, Inc.;
Planetout Corporation
David L. Sobel
Electronic Privacy Information
Center
666 Pennsylvania Ave., S.E.
Suite 301
Washington, D.C. 20003
Attorney for Appellee
Electronic Privacy Information Center
Shari Steele
Electronic Frontier Foundation
6999 Barry's Hill Road
Bryans Road, Maryland 20616
Attorney for Appellee
Electronic Frontier Foundation
3
David Affinito
Dell'Italia, Affinito, Jerejian
& Santola
18 Tony Galento Plaza
Orange, New Jersey 07050
Paul J. McGeady
Robin S. Whitehead
Of counsel
475 Riverside Drive
New York, New York 10115
Attorneys for Amici Curiae
Morality in Media, Inc.
American Catholic Lawyers
Association
Bruce A. Taylor
J. Robert Flores
Chadwicke L. Groover
National Law Center for
Children and Families
3819 Plaza Drive
Fairfax, Virginia 22030-2512
James J. West
105 North Front Street
Harrisburg, Pennsylvania 17101
Attorneys for Amici Curiae-Appellant
John S. McCain, Senator; Dan Coats,
Senator; Thomas J. Bliley,
Representative; Michael G. Oxley,
Representative; James C. Greenwood,
Representative
Janet M. LaRue
Family Research Council
801 G Street, N.W.
Washington, D.C. 20001
Attorney for Amicus Curiae-
Appellants Family Research Council;
Enough is Enough; The Jewish Policy
Center
4
R. Bruce Rich
Elizabeth S. Weiswasser
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Attorneys for Amicus Curiae-
Appellees The American Society of
Newspaper Editors; Bibliobytes, Inc.;
The Center for Democracy and
Technology; The Comic Book Legal
Defense Fund; The Commercial
Internet Exchange Association and
PSINET, Inc.; Freedom Read
Foundation; Internet Alliance;
Magazine Publishers of America; The
National Association of Recording
Merchandisers; People for the
American Way; Periodical Book
Association; PSINET, Inc.; The
Publishers Marketing Association; The
Recording Industry Association of
America; The Society for Professional
Journalists
Stephen A. Bokat
National Chamber Litigation Center
1615 H St., N.W.
Washington, D.C. 20062
Bruce J. Ennis
Jenner & Block
601 13th Street, N.W.
12th Floor
Washington, D.C. 20005
Attorney Amicus Curiae-Appellee
The Chamber of Commerce of the
United States of America
5
Bruce J. Ennis
Jenner & Block
601 13th Street, N.W.
12th Floor
Washington, D.C. 20005
Attorney for Amicus Curiae-Appellee
Internet Education Foundation
OPINION OF THE COURT
GARTH, Circuit Judge:
This appeal "presents a conflict between one of society's
most cherished rights -- freedom of expression-- and one
of the government's most profound obligations -- the
protection of minors." American Booksellers v. Webb, 919
F.2d 1493, 1495 (11th Cir. 1990). The government
challenges the District Court's issuance of a preliminary
injunction which prevents the enforcement of the Child
Online Protection Act, Pub. L. No. 105-277, 112 Stat. 2681(1998) (codified at 47 U.S.C. S 231) ("COPA"), enacted in
October of 1998. At issue is COPA's constitutionality, a
statute designed to protect minors from "harmful material"
measured by "contemporary community standards"
knowingly posted on the World Wide Web ("Web") for
commercial purposes.1
We will affirm the District Court's grant of a preliminary
injunction because we are confident that the ACLU's attack
on COPA's constitutionality is likely to succeed on the
merits. Because material posted on the Web is accessible
by all Internet users worldwide, and because current
technology does not permit a Web publisher to restrict
access to its site based on the geographic locale of each
_________________________________________________________________
1. The District Court exercised subject matter jurisdiction pursuant to
the general federal question statute, 28 U.S.C.S 1331. This court
exercises appellate jurisdiction pursuant to 28 U.S.C. S 1292(a)(1), which
provides a court of appeals with jurisdiction over appeals from
"[i]nterlocutory orders of the district courts of the United States . . .
granting, continuing, modifying, refusing, or dissolving injunctions . . .
except where a direct review may be had in the Supreme Court."
6
particular Internet user, COPA essentially requires that
every Web publisher subject to the statute abide by the
most restrictive and conservative state's community
standards in order to avoid criminal liability. Thus, because
the standard by which COPA gauges whether material is
"harmful to minors" is based on identifying"contemporary
community standards" the inability of Web publishers to
restrict access to their Web sites based on the geographic
locale of the site visitor, in and of itself, imposes an
impermissible burden on constitutionally protected First
Amendment speech.
In affirming the District Court, we are forced to recognize
that, at present, due to technological limitations, there may
be no other means by which harmful material on the Web
may be constitutionally restricted, although, in light of
rapidly developing technological advances, what may now
be impossible to regulate constitutionally may, in the not-
too-distant future, become feasible.
I. BACKGROUND
COPA was enacted into law on October 21, 1998.
Commercial Web publishers subject to the statute that
distribute material that is harmful to minors are required
under COPA to ensure that minors do not access the
harmful material on their Web site. COPA is Congress's
second attempt to regulate the dissemination to minors of
indecent material on the Web/Internet. The Supreme Court
had earlier, on First Amendment grounds, struck down
Congress's first endeavor, the Communications Decency
Act, ("CDA") which it passed as part of the
Telecommunications Act of 1996.2See ACLU v. Reno, 521
U.S. 844 (1997) ("Reno II"). To best understand the current
challenge to COPA, it is necessary for us to briefly examine
the CDA.
_________________________________________________________________
2. For ease of reference the various applicable cases will be referred to
as
follows: ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), hereinafter
"Reno I" (addressing CDA); ACLU v. Reno, 521 U.S. 844 (1997),
hereinafter "Reno II" (striking down the CDA as unconstitutional); ACLU
v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999), hereinafter "Reno III" (case
currently on appeal addressing constitutionality of COPA).
7
A. CDA
The CDA prohibited Internet users from using the
Internet to communicate material that, under contemporary
community standards, would be deemed patently offensive
to minors under the age of eighteen. See Reno II , 521 U.S.
at 859-60.3 In so restricting Internet users, the CDA
provided two affirmative defenses to prosecution; (1) the use
of a credit card or other age verification system, and (2) any
good faith effort to restrict access by minors. See id. at 860.
In holding that the CDA violated the First Amendment, the
Supreme Court explained that without defining key terms
the statute was unconstitutionally vague. Moreover, the
Court noted that the breadth of the CDA was "wholly
unprecedented" in that, for example, it was "not limited to
commercial speech or commercial entities . . . [but rather]
[i]ts open-ended prohibitions embrace all nonprofit entities
and individuals posting indecent messages or displaying
them on their own computers." Id at 877.
Further, the Court explained that, as applied to the
Internet, a community standards criterion would effectively
mean that because all Internet communication is made
_________________________________________________________________
3. The Communications Decency Act, 47 U.S.C.S 223(d) provides that:
Whoever --
"(1) in interstate or foreign communications knowingly --
"(A) uses an interactive computer service to send a specific person or
persons under 18 years of age, or
"(B) uses any interactive computer service to display in a manner
available to a person under 18 years of age, "any comment, request,
suggestion, proposal, image, or other communication that, in context,
depicts or describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities or
organs, regardless of whether the user of such service placed the call or
initiated the communication; or
"(2) knowingly permits any telecommunications facility under such
person's control to be used for an activity prohibited by paragraph (1)
with the intent that it be used for such activity
"shall be fined under Title 18, or imprisoned not more than two years,
or both."
8
available to a worldwide audience, the content of the
conveyed message will be judged by the standards of the
community most likely to be offended by the content. See
id. at 877-78. Finally, with respect to the affirmative
defenses authorized by the CDA, the Court concluded that
such defenses would not be economically feasible for most
noncommercial Web publishers, and that even with respect
to commercial publishers, the technology had yet to be
proven effective in shielding minors from harmful material.
See id. at 881. As a result, the Court held that the CDA
was not tailored so narrowly as to achieve the government's
compelling interest in protecting minors, and that it lacked
the precision that the First Amendment requires when a
statute regulates the content of speech. See id . at 874. See
also United States v. Playboy Entertainment Group, Inc.,
2000 WL 646196 (U.S. May 22, 2000).
B. COPA
COPA, the present statute, attempts to "address[ ] the
specific concerns raised by the Supreme Court" in
invalidating the CDA. H.R. REP. NO . 105-775 at 12 (1998);
See S.R. REP. NO. 105-225, at 2 (1998). COPA prohibits an
individual or entity from:
knowingly and with knowledge of the character of the
material, in interstate or foreign commerce by means of
the World Wide Web, mak[ing] any communication for
commercial purposes that is available to any minor and
that includes any material that is harmful to minors.
47 U.S.C. S 231(a)(1) (emphasis added). As part of its
attempt to cure the constitutional defects found in the
CDA, Congress sought to define most of COPA's key terms.
COPA attempts, for example, to restrict its scope to
material on the Web rather than on the Internet as a whole;4
to target only those Web communications made for
"commercial purposes";5 and to limit its scope to only that
material deemed "harmful to minors."
_________________________________________________________________
4. COPA defines the clause "by means of the World Wide Web" as the
"placement of material in a computer server-basedfile archive so that it
is publicly accessible, over the Internet, using hypertext transfer
protocol
or any successor protocol." 47 U.S.C. S 231(e)(1).
5. COPA defines the clause "commercial purposes" as those individuals
or entities that are "engaged in the business of making such
9
Under COPA, whether material published on the Web is
"harmful to minors" is governed by a three-part test, each
of which must be found before liability can attach: 6
(A) the average person, applying contemporary
community standards, would find, taking the material
as a whole and with respect to minors, is designed to
appeal to, or is designed to pander to, the prurient
interest;
(B) depicts, describes, or represents, in a manner
patently offensive with respect to minors, an actual or
simulated sexual act or sexual contact, an actual or
simulated normal or perverted sexual act, or a lewd
exhibition of the genitals or post-pubescent female
breast; and
(C) taken as a whole, lacks serious, literary, art istic,
political, or scientific value for minors.
47 U.S.C. S 231(e)(6) (emphasis added).7 The parties
conceded at oral argument that this "contemporary
community standards" test applies to those communities
_________________________________________________________________
communications." 47 U.S.C. S 231(e)(2)(A). In turn, COPA defines a
person "engaged in the business" as one
who makes a communication, or offers to make a communication,
by means of the World Wide Web, that includes any material that is
harmful to minors, devotes time, attention, or labor to such
activities, as a regular course of such person's trade or business,
with the objective of earning a profit as a result of such
activities
(although it is not necessary that the person make a profit or that
the making or offering to make such communications be the
person's sole or principal business or source of income).
Id. S 231(e)(2)(B).
6. In the House Report that accompanied the bill that eventually became
COPA, this "harmful to minors" test attempts to conform to the
standards identified by the Supreme Court in Ginsberg v. New York, 390
U.S. 629 (1968), as modified by Miller v. California, 413 U.S. 15 (1973)
in identifying "patently offensive" material.See H.R. REP. NO. 105-775, at
13 (1998).
7. Under COPA, a minor is defined as one under age seventeen. See 47
U.S.C. S 231(e)(7).
10
within the United States, and not to foreign communities.
Therefore, the more liberal community standards of
Amsterdam or the more restrictive community standards of
Tehran would not impact upon the analysis of whether
material is "harmful to minors" under COPA.
COPA also provides Web publishers subject to the statute
with affirmative defenses. If a Web publisher"has restricted
access by minors to material that is harmful to minors"
through the use of a "credit card, debit account, adult
access code, or adult personal identification number . . . a
digital certificate that verifies age . . . or by any other
reasonable measures that are feasible under available
technology," then no liability will attach to the Web
publisher even if a minor should nevertheless gain access
to restricted material under COPA. 47 U.S.C. S 231(c)(1).8
COPA violators face both criminal (maximum fines of
$50,000 and a maximum prison term of six months, or
both) and civil (fines of up to $50,000 for each day of
violation) penalties.9
C. Overview of the Internet and the World Wide Web
In recent years use of the Internet and the Web has
become increasingly common in mainstream society.
Nevertheless, because the unique character of these new
electronic media significantly affect our opinion today, we
briefly review their relevant elements.10
The Internet is a decentralized, self-maintained
networking system that links computers and computer
networks around the world, and is capable of quickly
_________________________________________________________________
8. The defense also applies if an individual or entity attempts "in good
faith to implement a defense" listed above. See id. 47 U.S.C. S 231(c)(2).
9. An individual found to have intentionally violated COPA also faces an
additional fine of not more than $50,000 for each day of violation. See
47 U.S.C. S 231(a)(2).
10. For more thorough descriptions of the Internet and the Web see e.g.,
Reno I, 929 F. Supp. 824, 830-45; Reno II , 521 U.S. 844; American
Libraries Ass'n v. Pataki, 969 F. Supp. 160, 164-67 (S.D.N.Y. 1997);
Hearst Corp. v. Goldberger, 1999 WL 97097 *1 (S.D.N.Y. Feb. 26, 1997)
(citing cases).
11
transmitting communications. See American Libraries Ass'n
v. Pataki, 969 F. Supp. 160, 164 (S.D.N.Y. 1997); ACLU v.
Reno, 31 F. Supp. 2d 473, 481 (E.D. Pa. 1999) ("Reno III").
Even though the Internet appears to be a "single, integrated
system" from a user's perspective, in fact no single
organization or entity controls the Internet. ACLU v. Reno,
929 F. Supp. 824, 838 (E.D. Pa. 1996) ("Reno I"); Reno III,
31 F. Supp.2d at 484. As a result, there is no "centralized
point from which individual Web sites or services can be
blocked from the Web." Id. Although estimates are difficult
because of the Internet's rapid growth, it was recently
estimated that the Internet connects over 159 countries
and more than 109 million users. See ACLU v. Johnson,
194 F.3d 1149, 1153 (10th Cir. 1999).
The World Wide Web is a publishing forum consisting of
millions of individual "Web sites" each containing
information such as text, images, illustrations, video,
animation or sounds provided by that site's creator. See
American Libraries, 969 F. Supp. at 166. Some of these
Web sites contain sexually explicit material. See Reno III, 31
F. Supp.2d at 484. As a publishing forum, the Web is the
best known method of communicating information online.
See id. Information is said to be published on the Web as
soon as it is made available to others by connecting the
publisher's computer to the Internet. See Reno I , 929 F.
Supp. at 844; Reno III, 31 F. Supp. 2d at 483. Each site is
connected to the Internet by means of certain protocols that
permit "the information to become part of a single body of
knowledge accessible by all Web visitors." American
Libraries, 969 F. Supp. at 166; Reno III, 31 F. Supp. 2d at
483.11 As a part of this unified body of knowledge, Web
_________________________________________________________________
11. A user who wishes to access the Web resources employs a "browser."
Browser software -- such as Netscape Navigator, Mosaic, or Internet
Explorer -- enables the user to display, print, and download documents
that are formatted in the standard Web formatting language. See
American Libraries, 969 F. Supp. at 166. The Web"uses a `hypertext'
formatting language called hypertext markup language (HTML), and
programs that `browse' the Web can display HTML documents containing
text, images, sound, animation and moving video stored in many other
formats. . . . [Hyperlinks] allow information to be accessed and organized
in very flexible ways, and allow individuals to locate and efficiently
view
related information even if the information is stored on numerous
computers all around the world." Reno III, 31 F. Supp. 2d at 483.
12
pages are all linked together so that the Internet user can
freely move from one Web page to another by "clicking" on
a "link." See id. Because the Internet has an "international,
geographically-borderless nature,"12 with the proper
software every Web site is accessible to all other Internet
users worldwide. See American Libraries, 969 F. Supp. at
166; Reno I, 929 F. Supp. at 837; Reno III, 31 F. Supp. 2d
at 483-84. Indeed, the Internet "negates geometry. . . it is
fundamentally and profoundly anti-spatial. You cannot say
where it is or describe its memorable shape and
proportions or tell a stranger how to get there. But you can
find things in it without knowing where they are. The
[Internet] is ambient -- nowhere in particular and
everywhere at once." Doe v. Roe, 955 P.2d 951, 956 (Ariz.
1998).
It is essential to note that under current technology, Web
publishers cannot "prevent [their site's] content from
entering any geographic community." Reno III , 31 F. Supp.
2d at 484. As such, Web publishers cannot prevent Internet
users in certain geographic locales from accessing their
site; and in fact the Web publisher will not even know the
geographic location of visitors to its site. See American
Libraries, 969 F. Supp. at 171. Similarly, a Web publisher
cannot modify the content of its site so as to restrict
different geographic communities to access of only certain
portions of their site. Thus, once published on the Web,
existing technology does not permit the published material
to be restricted to particular states or jurisdictions.
D. Procedural History
On October 22, 1998, the day after COPA was enacted,
the American Civil Liberties Union ("ACLU") brought the
present action in the United States District Court for the
Eastern District of Pennsylvania, challenging COPA's
constitutionality and seeking to enjoin its enforcement.13
After granting a temporary restraining order against
_________________________________________________________________
12. People v. Barrows, 177 Misc. 2d 712, 729 (NY 1998)
13. Other parties joined the ACLU in asserting the unconstitutionality of
COPA. For ease of reference, we will refer to all party-plaintiffs as
"ACLU"
throughout this opinion.
13
enforcement of the law on November 20, 1998, the District
Court held extensive evidentiary hearings which, on
February 1, 1999, resulted in the entry of a preliminary
injunction preventing the government from enforcing COPA.
E. District Court's Findings of Fact
After five days of testimony, the District Court rendered
sixty-seven separate findings of fact concerning the
Internet, the Web, and COPA's impact on speech activity in
this relatively-new medium. See Reno III, 31 F. Supp. 2d at
482-92. It bears noting that none of the parties dispute the
District Court's findings (including those describing the
Internet and the Web), nor are any challenged as clearly
erroneous. Thus, we accept these findings.
The District Court first rendered findings concerning the
physical medium known as the Internet, which it
recognized consisted of many different methods of
communication, only one of which is the World Wide Web.
See Reno III, 31 F. Supp. 2d at 482-83. It found that "[o]nce
a provider posts its content on the Internet and chooses to
make it available to all, it generally cannot prevent that
content from entering any geographical community." Id.The Court then made findings as to the costs and
burdens COPA imposes on Web publishers and on the
adults who seek access to sites covered by COPA. See Reno
III, 31 F. Supp. 2d at 482-492. As observed earlier, the
statute provides for a limited number of defenses for Web
publishers. See 47 U.S.C. S 231(c). 14 The Court found that
_________________________________________________________________
14. The statute provides:
It is an affirmative defense to prosecution under this section that
the defendant, in good faith, has restricted access by minors to
material that is harmful to minors --
(A) by requiring use of a credit card, debit accou nt, adult access
code, or adult personal identification number,
(B) by accepting a digital certificate that verifies age; or
(C) by any other reasonable measures that are feas ible under
available technology.
See 47 U.S.C. S 231(c).
14
as a technological matter the only affirmative defenses
presently available are the implementation of credit card or
age verification systems because there is no currently
functional digital certificate or other reasonable means to
verify age. See Reno III. 31 F. Supp. 2d at 487.
With respect to the credit card option, the court found
that the cost to Web publishers could range from $300 to
"thousands of dollars" (exclusive of transaction fees
incurred from each verification). Id. at 488. These costs
were also exclusive, according to the court, of the labor and
energy that would be required of the Web publisher to
implement such a system. Id. This labor and energy would
include reorganizing a particular Web site to ensure that
material considered "harmful to minors" could only be
accessed after passing through a credit card or other age
verification system. See id. at 490. With this in mind, the
court found, for example, that textual material that
consisted primarily of non-sexual material, but also
included some content that was "harmful to minors" would
also be subject to such age verification systems. See id.As for age verification systems, the District Court's
findings were more optimistic. The court found that a Web
publisher "can sign up for free with Adult Check[one
company providing such a service] to accept Adult Check
PINs, and a Web site operator can earn commissions of up
to 50% to 60% of the fees generated by [their] users." Id. at
489. The District Court also downplayed the cost (both in
price and in energy) that would be incurred by the
individual seeking to access "harmful to minors" material
on the Web, finding that an Adult Check password could be
easily purchased for only $16.95. See id. at 490.15 The
same burdens concerning the reorganization of a particular
Web site mentioned above would, of course, equally apply
to a Web publisher that elected to utilize a PIN number for
age verification.
Either system, according to the District Court, would
impose significant residual or indirect burdens upon Web
_________________________________________________________________
15. It now seems that those with a valid credit card who wish to acquire
an adult PIN may do so without cost using a Web service such as
www.freecheck.com.
15
publishers. Most importantly, both credit card and age
verification systems require an individual seeking to access
material otherwise permissible to adults to reveal personal
statistics. Because many adults will choose not to reveal
these personal details, those otherwise frequently visited
Web sites will experience "a loss of traffic." Id. at 491. This
loss of traffic, in turn, would inflict "economic harm" upon
the particular Web site, thus increasing the burden that
COPA imposes. Id. P 61.
Finally, the District Court considered whether voluntary
parental blocking or filtering software was a less restrictive
means by which to achieve the government's compelling
objective of protecting minors from harmful material on the
Web. The court found that "[s]uch technology may be
downloaded and installed on a user's home computer at a
price of approximately $40.00." Id. at 492 P 65. The court,
however, acknowledged that such software "is not perfect"
as it is both over and under inclusive in the breadth of the
material that it blocks and filters. See id. P 66.16
F. District Court's Conclusions of Law
Initially, the government moved the District Court to
dismiss the ACLU's action insofar as the individuals and
entities that it purported to represent were not in danger of
prosecution under COPA and therefore lacked standing. In
particular, the government asserted that the material
placed on plaintiffs' Web sites was not "harmful to minors"
and that each of the plaintiffs were not "engaged in the
business" of posting such material for "commercial
purposes." See supra note 13.
The District Court interpreted COPA to impose liability on
those Web publishers who profited from Web sites that
contained some, even though not all, material that was
_________________________________________________________________
16. We question, however, the effectiveness of actions taken by a minor's
parent to supervise or block harmful material by using filtering software.
We are of the view that such actions do not constitute government
action, and we do not consider this to be a lesser restrictive means for
the government to achieve its compelling interest. See also n.24 supra.
But see United States v. Playboy Entertainment Group, Inc., 2000 WL
646196 (U.S. May 22, 2000).
16
harmful to minors. See Reno III, 31 F. Supp. 2d at 480. The
court therefore concluded that the plaintiffs could
reasonably fear prosecution because their Web sites
contained material "that is sexual in nature." Id.Having established plaintiffs' standing17 -- an analysis
with which we agree -- the District Court began its First
Amendment analysis by stating that insofar as COPA
prohibits Web publishers from posting material that is
"harmful to minors," it constitutes a content-based
restriction on speech that "is presumptively invalid and is
subject to strict scrutiny." Id. at 493 (citing R.A.V. v. City of
St. Paul, 505 U.S. 377, 381 (1992); Sable Comm. of Calif. v.
FCC, 492 U.S. 115,126 (1989)) See also United States v.
Playboy Entertainment Group, Inc., 2000 WL 646196 (U.S.
May 22, 2000). Pursuant to this strict scrutiny analysis,
the District Court held that COPA placed too large a burden
on protected expression. In particular, the court found that
the high economic costs that Web publishers would incur
in implementing an age verification system would cause
them to cease publishing such material, and further, that
the difficulty in accurately shielding harmful material from
minors would lead Web publishers to censor more material
than necessary. See id. at 494-95. Moreover, the District
Court believed that because of the need to use age
verification systems, adults would be deterred from
accessing these sites, and that the resulting loss of Web
traffic would affect the Web publishers' abilities to continue
providing such communications in the future.
The court then considered whether the government could
establish that COPA was the least restrictive and most
narrowly tailored means to achieve its compelling objective.
See Reno III, 31 F. Supp. 2d at 496. The government
contends that COPA meets this test because COPA does not
" `ban . . . the distribution or display of material harmful to
minors [but] simply requires the sellers of such material to
recast their message so that they are not readily available
to children.' " Appellant's Brief at 27 (quoting H.R. REP. NO.
105-775 at 6 (1998)). The court concluded, however, that
even if COPA were enforced, children would still be able to
_________________________________________________________________
17. See Reno III, 31 F. Supp. 2d at 479.
17
access numerous foreign Web sites containing harmful
material; that some minors legitimately possess credit cards
-- thus defeating the effectiveness of this affirmative
defense in restricting access by minors; that COPA
prohibits a "sweeping category of form of content" instead of
limiting its coverage to pictures, images and graphic image
files -- most often utilized by the adult industry as
"teasers" Reno III 31 F. Supp. 2d at 497; and that parental
blocking and filtering technology would likely be as effective
as COPA while imposing fewer constitutional burdens on
free speech. Therefore, the District Court concluded that
COPA was not the least restrictive means for the
government to achieve its compelling objective of protecting
minors from harmful material. Id. at 492. As a result, the
court held that the ACLU had shown a substantial
likelihood of succeeding on the merits in establishing
COPA's unconstitutionality.
In concluding its analysis, the District Court held that
losing First Amendment freedoms, even if only for a
moment, constitutes irreparable harm. See id. (citing Hohe
v. Casey, 868 F.2d 69, 72-73 (3d Cir. 1989)). And, in
balancing the interests at stake for issuing a preliminary
injunction, the District Court concluded that the scale
tipped in favor of the ACLU, as the government lacks an
interest in enforcing an unconstitutional law. See id. (citing
ACLU v. Reno, 929 F. Supp. 824, 849 (E.D. Pa. 1996)).
Because the ACLU met its burden for a preliminary
injunction, the District Court granted its petition.
II. ANALYSIS
In determining whether a preliminary injunction is
warranted, we must consider:
(1) whether the movant has shown a reasonable
probability of success on the merits; (2) whether the
movant will be irreparably harmed by denial of the
relief; (3) whether granting preliminary relief will result
in even greater harm to the nonmoving party; and (4)
whether granting the preliminary relief will be in the
public interest.
18
Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d
Cir. 1999) (citing ACLU v. Black Horse Pike Regional Bd. of
Educ., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996) (en banc)). We
review a district court's grant of a preliminary injunction
according to a three-part standard. Legal conclusions are
reviewed de novo, findings of fact are reviewed for clear
error, and the "ultimate decision to grant or deny the
preliminary injunction" is reviewed for abuse of discretion.
See Maldonado v. Houstoun, 157 F.3d 179, 183 (3d Cir.
1998), cert. denied, 119 S. Ct. 1802 (1999).
A. Reasonable probability of success on the merits
We begin our analysis by considering what, for this case,
is the most significant prong of the preliminary injunction
test -- whether the ACLU met its burden of establishing a
reasonable probability of succeeding on the merits in
proving that COPA trenches upon the First Amendment to
the United States Constitution. Initially, we note that the
District Court correctly determined that as a content-based
restriction on speech, COPA is "both presumptively invalid
and subject to strict scrutiny analysis." See Reno III, 31 F.
Supp. 2d at 493. As in all areas of constitutional strict
scrutiny jurisprudence, the government must establish that
the challenged statute is narrowly tailored to meet a
compelling state interest, and that it seeks to protect its
interest in a manner that is the least restrictive of protected
speech. See, e.g., Schaumberg v. Citizens for a Better
Environment, 444 U.S. 620, 637 (1980); Sable Comm of
Calif. v. FCC, 492 U.S. 115,126 (1989).18 These principles
_________________________________________________________________
18. The Supreme Court has recognized that each medium of expression
may permit special justifications for regulation. See Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975); Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367 (1969); FCC v. Pacifica
Foundation, 438 U.S. 726 (1978). For example, broadcast media, due to
the history of extensive government regulation, its"invasive" nature, and
the scarcity of available frequencies at its inception justified
heightened
regulation. See, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S.
622, 637-38 (1994); Sable Communications of Cal., Inc. v. FCC, 492 U.S.
115, 128 (1989). See also United States v. Playboy Entertainment Group,
Inc., 2000 WL 646196 (U.S. May 22, 2000). However, the Supreme Court
19
have been emphasized again in the Supreme Court's most
recent opinion, United States v. Playboy Entertainment
Group, Inc., 2000 WL 646196 (U.S. May 22, 2000), where
the Court, concerned with the "bleeding" of cable
transmissions, held S 505 of the Telecommunications Act of
1996 unconstitutional as violative of the First Amendment.
It is undisputed that the government has a compelling
interest in protecting children from material that is harmful
to them, even if not obscene by adult standards. See Reno
III, 31 F. Supp. 2d at 495 (citing Sable, 492 U.S. at 126(1989); Ginsberg v. New York, 390 U.S. 629, 639-40
(1968)). At issue is whether, in achieving this compelling
objective, Congress has articulated a constitutionally
permissible means to achieve its objective without
curtailing the protected free speech rights of adults. See
Reno III, 31 F. Supp. 2d at 492 (citing Sable, 492 U.S. at
127; Butler v. Michigan, 352 U.S. 380, 383 (1957)). As we
have observed, the District Court found that it had not --
holding that COPA was not likely to succeed in surviving
strict scrutiny analysis.
We base our particular determination of COPA's likely
unconstitutionality, however, on COPA's reliance on
"contemporary community standards" in the context of the
electronic medium of the Web to identify material that is
harmful to minors. The overbreadth of COPA's definition of
"harmful to minors" applying a "contemporary community
standards" clause -- although virtually ignored by the
parties and the amicus in their respective briefs but raised
by us at oral argument -- so concerns us that we are
persuaded that this aspect of COPA, without reference to its
other provisions, must lead inexorably to a holding of a
likelihood of unconstitutionality of the entire COPA statute.
_________________________________________________________________
has also recognized that these same elements, which justified heightened
regulation of the broadcast medium, do not exist in cyberspace. See
ACLU v. Reno, 521 U.S. 844, 868 (1997). The Internet has not been
historically subject to regulation. Nor has the Internet suffered from a
scarcity of available frequencies. See id. at 869-70. Therefore, the
Supreme Court held that there is "no basis for qualifying the level of
First Amendment scrutiny that should be applied to this [cyberspace]
medium." Id. at 870.
20
Hence we base our opinion entirely on the basis of the
likely unconstitutionality of this clause, even though the
District Court relied on numerous other grounds. 19
As previously noted, in passing COPA, Congress
attempted to resolve all of the problems raised by the
Supreme Court in striking down the CDA as
unconstitutional. One concern noted by the Supreme Court
was that, as a part of the wholly unprecedented broad
coverage of the CDA, "the `community standards' criterion
as applied to the Internet means that any communication
available to a nationwide audience will be judged by the
standards of the community most likely to be offended by
the message." Reno II, 521 U.S. at 877-78. We are not
persuaded that the Supreme Court's concern with respect
to the "community standards" criterion has been
sufficiently remedied by Congress in COPA.
Previously, in addressing the mailing of unsolicited
sexually explicit material in violation of a California
obscenity statute, the Supreme Court held that the fact-
finder must determine whether " `the average person,
applying contemporary community standards' wouldfind
the work taken as a whole, [to appeal] to the prurient
_________________________________________________________________
19. As a result, we do not find it necessary to address the District
Court's analysis of the definition of "commercial purposes"; whether the
breadth of the forms of content covered by COPA could have been more
narrowly tailored; whether the affirmative defenses impose too great a
burden on Web publishers or whether those affirmative defenses should
have been included as elements of the crime itself; whether COPA's
inclusion of criminal as well as civil penalties was excessive; whether
COPA is designed to include communications made in chat rooms,
discussion groups and links to other Web sites; whether the government
is entitled to so restrict communications when children will continue to
be able to access foreign Web sites and other sources of material that is
harmful to them; what taken "as a whole" should mean in the context of
the Web and the Internet; or whether the statute's failure to distinguish
between material that is harmful to a six year old versus a sixteen year
old is problematic.
We recognize that in focusing on the "contemporary community
standards" aspect of COPA we are affirming the District Court's ruling on
a ground other than that emphasized by the District Court. See Paac v.
Rizzo, 502 F.2d 306, 308 n.1 (1974).
21
interest." Miller v. California, 413 U.S. 15, 24 (1973)
(quoting Kois v. Wisconsin, 408 U.S. 229, 230 (1972)). In
response to the Supreme Court's criticism of the CDA,
Congress incorporated into COPA this Miller test, explaining
that in so doing COPA now "conforms to the standards
identified in Ginsberg, as modified by the Supreme Court in
Miller v. California, 413 U.S. 15 (1973)." H.R. REP. NO. 105-
775 at 13 (1998); 47 U.S.C. S 231(e)(6)(A). Even in so doing,
Congress remained cognizant of the fact that "the
application of community standards in the context of the
Web is controversial." H.R. REP. N O. 107-775, at 28.
Nevertheless, in defending the constitutionality of COPA's
use of the Miller test, the government insists that "there is
nothing dispositive about the fact that [in COPA]
commercial distribution of such [harmful] materials occurs
through an online, rather than a brick and mortar outlet."
See Reply Brief at 18 n.3.
Despite the government's assertion, "[e]ach medium of
expression `must be assessed for First Amendment
purposes by standards suited to it, for each may present its
own problems.' " Reno III, 31 F. Supp.2d at 495 (quoting
Southeastern Promotions, Ltd v. Conrad, 420 U.S. 546, 557
(1975)). See also United States v. Playboy Entertainment
Group, Inc., 2000 WL 646196, at *8 (U.S. May 22, 2000). In
considering "the unique factors that affect communication
in the new and technology-laden medium of the Web," we
are convinced that there are crucial differences between a
"brick and mortar outlet" and the online Web that
dramatically affect a First Amendment analysis. Id
Unlike a "brick and mortar outlet" with a specific
geographic locale, and unlike the voluntary physical mailing
of material from one geographic location to another, as in
Miller, the uncontroverted facts indicate that the Web is not
geographically constrained. See Reno III, 31 F. Supp. 2d at
482-92; American Libraries, 969 F. Supp. at 169("geography, however, is a virtually meaningless construct
on the Internet"). Indeed, and of extreme significance, is the
fact, as found by the District Court, that Web publishers
are without any means to limit access to their sites based
on the geographic location of particular Internet users. As
soon as information is published on a Web site, it is
22
accessible to all other Web visitors. See American Libraries,
969 F. Supp. at 166; Reno III, 31 F. Supp. 2d at 483.
Current technology prevents Web publishers from
circumventing particular jurisdictions or limiting their site's
content "from entering any [specific] geographic
community." Reno III, 31 F. Supp. 2d at 484. This key
difference necessarily affects our analysis in attempting to
define what contemporary community standards should or
could mean in a medium without geographic boundaries.
In expressing its concern over the wholly unprecedented
broad coverage of the CDA's scope, the Supreme Court has
already noted that because of the peculiar geography-free
nature of cyberspace, a "community standards" test would
essentially require every Web communication to abide by
the most restrictive community's standards. See Reno II,
521 U.S. at 877-78. Similarly, to avoid liability under
COPA, affected Web publishers would either need to
severely censor their publications or implement an age or
credit card verification system whereby any material that
might be deemed harmful by the most puritan of
communities in any state is shielded behind such a
verification system. Shielding such vast amounts of
material behind verification systems would prevent access
to protected material by any adult seventeen or over
without the necessary age verification credentials.
Moreover, it would completely bar access to those materials
to all minors under seventeen -- even if the material would
not otherwise have been deemed "harmful" to them in their
respective geographic communities.
The government argues that subjecting Web publishers to
varying community standards is not constitutionally
problematic or, for that matter, unusual. The government
notes that there are numerous cases in which the courts
have already subjected the same conduct to varying
community standards, depending on the community in
which the conduct occurred. For example, the Supreme
Court has stated that "distributors of allegedly obscene
materials may be subjected to varying community
standards in the various federal judicial districts into which
they transmit the material [but that] does not render a
federal statute unconstitutional because of the failure of the
23
application of uniform national standards of obscenity."
Hamling v. United States, 418 U.S. 87, 106 (1974).
Similarly, the government cites to the "dial-a-porn" cases in
which the Supreme Court has held that even if the
"audience is comprised of different communities with
different local standards" the company providing the
obscene material "ultimately bears the burden of complying
with the prohibition on obscene messages" under each
community's respective standard. Sable Comm. of California
v. F.C.C., 492 U.S. 115, 125-26 (1989).
These cases, however, are easily distinguished from the
present case. In each of those cases, the defendants had
the ability to control the distribution of controversial
material with respect to the geographic communities into
which they released it. Therefore, the defendants could limit
their exposure to liability by avoiding those communities
with particularly restrictive standards, while continuing to
provide the controversial material in more liberal-minded
communities. For example, the pornographer in Hamling
could have chosen not to mail unsolicited sexually explicit
material to certain communities while continuing to mail
them to others. Similarly, the telephone pornographers
("dial-a-porn") in Sable could have screened their incoming
calls and then only accepted a call if its point of origination
was from a community with standards of decency that were
not offended by the content of their pornographic telephone
messages.20
By contrast, Web publishers have no such comparable
control. Web publishers cannot restrict access to their site
based on the geographic locale of the Internet user visiting
their site. In fact, "an Internet user cannot foreclose access
to . . . work from certain states or send differing versions of
. . . communication[s] to different jurisdictions . . . The
Internet user has no ability to bypass any particular state."
_________________________________________________________________
20. The Sable court found that: "Sable is free to tailor its messages, on
a selective basis, if it so chooses, to the communities it chooses to
serve.
While Sable may be forced to incur some costs in developing and
implementing a system for screening the locale of incoming calls, there
is no constitutional impediment to enacting a law that may imposes
such costs on a medium electing to provide these messages." Sable 492
U.S. at 125-26.
24
American Libraries Ass'n v. Pataki, 969 F. Supp. 160(S.D.N.Y. 1997). As a result, unlike telephone or postal mail
pornographers, Web publishers of material that may be
harmful to minors must "comply with the regulation
imposed by the State with the most stringent standard or
[entirely] forego Internet communication of the message
that might or might not subject [the publisher] to
prosecution." Id.To minimize this distinction between Web publishers and
all other forms of communication that contain material that
is harmful to minors, the government cites to one Sixth
Circuit case -- presently the only case in which a court has
applied a "community standards" test in the context of the
electronic medium. See United States v. Thomas , 74 F.3d
701 (6th Cir. 1996). The Thomas court determined that
whether the material on the defendant's electronic bulletin
board is harmful must be judged by the standards of each
individual community wherein the disputed material was
received, even if the standards in each of the recipient
communities varied one from the next, and even if the
material was acceptable in the community from which it
was sent. See id at 711. Despite the "electronic medium" in
which electronic bulletin boards are found, Thomas is
inapposite inasmuch as electronic bulletin boards, just as
telephones, regular mail and other brick and mortar
outlets, are very different creatures from that of the Web as
a whole. Thomas itself recognized this difference, and by
limiting its holding accordingly, completely undercuts the
government's argument, stating explicitly that:
Defendants and Amicus Curiae appearing on their
behalf argue that the computer technology used here
requires a new definition of community, i.e., one that is
based on the broad-ranging connections among people
in cyberspace rather than the geographic locale of the
federal judicial district of the criminal trial. . ..
Therefore, they contend . . . [bulletin board publishers]
will be forced to censor their material so as not to run
afoul of the standards of the community with the most
restrictive standards. Defendants' First Amendment
issue, however, is not implicated by the facts of this
case. This is not a situation where the bulletin board
25
operator had no knowledge or control over the
jurisdictions where materials were distributed for
downloading or printing. Access to the Defendants'
[bulletin board] was limited. Membership was
necessary and applications were submitted and
screened before passwords were issued and materials
were distributed. Thus, Defendants had in place
methods to limit user access in jurisdictions where the
risk of a finding of obscenity was greater than in
California . . . . If Defendants did not wish to subject
themselves to liability in jurisdictions with less tolerant
standards for determining obscenity, they could have
refused to give passwords to members in those
districts, thus precluding the risk of liability. . . . .
Thus, under the facts of this case, there is not need for
this court to adopt a new definition of "community' for
use in obscenity prosecutions involving electronic
bulletin boards. This court's decision is guided by one
of the cardinal rules governing the federal courts, i.e.,
never reach constitutional questions not squarely
presented by the facts of a case." Id. at 711-12.
Thus, it is clear that Thomas fails to support the
government's position. Indeed, no federal court has yet
ruled on whether the Web/Internet may be constitutionally
regulated in light of differing community standards.
Our concern with COPA's adoption of Miller's
"contemporary community standards" test by which to
determine whether material is harmful to minors is with
respect to its overbreadth in the context of the Web
medium. Because no technology currently exists by which
Web publishers may avoid liability, such publishers would
necessarily be compelled to abide by the "standards of the
community most likely to be offended by the message" Reno
II, 521 U.S. at 877-78, even if the same material would not
have been deemed harmful to minors in all other
communities. Moreover, by restricting their publications to
meet the more stringent standards of less liberal
communities, adults whose constitutional rights permit
them to view such materials would be unconstitutionally
deprived of those rights. Thus, this result imposes an
26
overreaching burden and restriction on constitutionally
protected speech.21
We recognize that invalidating a statute because it is
overbroad is "strong medicine." Broadrick v. Oklahoma, 413
U.S. 601, 613 (1972). As such, before concluding that a
statute is unconstitutionally overbroad, we seek to
determine if the statute is " `readily susceptible' to a
narrowing construction that would make it constitutional
. . . [because courts] will not rewrite a . . . law to conform
it to constitutional requirements." Virginia v. American
Booksellers' Ass'n, 484 U.S. 383, 397 (1988) (quoting
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)). See
also Broadrick, 413 U.S. at 613; Forsyth County v.
Nationalist Movement, 505 U.S. 123, 130 (1992); Shea, 930
F. Supp. at 939.
Two possible ways to limit the interpretation of COPA are
(a) assigning a narrow meaning to the language of the
statute itself, or (b) deleting that portion of the statute that
is unconstitutional, while preserving the remainder of the
statute intact. See e.g. Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 502 (1985); Shea, 930 F. Supp. at 939. We
therefore turn our attention to whether either limiting
construction is feasible here.
The government, in attempting to make use of thefirst of
these salvaging mechanisms, suggests that we should
interpret narrowly the "contemporary community
standards" language in COPA as an "adult" rather than as
a "geographic" standard. The House Report itself suggests
this construction to sidestep the potential constitutional
_________________________________________________________________
21. Even if we were to overlook the unconstitutional overbreadth of the
COPA "contemporary community standards" test and if COPA were to be
deemed effective, it still would not eliminate much of the harmful
material which a minor could access. For example, minors could still
access harmful material published by non-commercial Web publishers,
and by foreign Web publishers. Thus, for example, materials "harmful to
minors" but generated in foreign communities with contemporary
community standards far more liberal than those of any state in the
United States may, nevertheless, remain available and be exposed to
children in the United States by means of the Web/Internet, despite
COPA's restrictions.
27
problems raised by the Supreme Court in interpreting the
CDA's use of a "community standards" phrase. Congress
explained:
"The committee intends for the definition of material
harmful to minors to parallel the Ginsberg and Miller
definitions of obscenity and harmful to minors. . . . In
essence, the Committee intends to adopt the `variable
obscenity' standard for minors. The Committee
recognizes that the applicability of community
standards in the context of the Web is controversial,
but understands it as an `adult' standard, rather than
a `geographic' standard, and one that is reasonably
constant among adults in America with respect to what
is suitable for minors." . . . . Thus, the person posting
the material is engaged in interstate commerce and is
subjecting himself to the jurisdiction of all
communities in a manner similar to the way obscenity
laws apply today."
H.R. REP. NO. 105-775 at 28 (1998). Congress reiterated
this very position in its amicus brief stating:"COPA adopted
a non-geographic, adult age community standard for
judging the prurience and offensiveness prongs of the
Harmful to Minors test." Brief of Members of Congress as
Amici Curiae, at 16.
Despite the government's effort to salvage this clause of
COPA from unconstitutionality, we have before us no
evidence to suggest that adults everywhere in America
would share the same standards for determining what is
harmful to minors. To the contrary, it is significant to us
that throughout case law, community standards have
always been interpreted as a geographic standard without
uniformity. See, e.g., American Libraries Ass'n v. Pataki,
969 F. Supp. 160, 182-83 (S.D.N.Y. 1997) ("Courts have
long recognized, however, that there is no single`prevailing
community standard' in the United States. Thus, even were
all 50 states to enact laws that were verbatim copies of the
New York [obscenity] Act, Internet users would still be
subject to discordant responsibilities.").
In fact, Miller, the very case from which the government
derives its "community standards" concept, has made clear
28
that community standards are to be construed in a
localized geographic context. "People in different States vary
in their tastes and attitudes and this diversity is not to be
strangled by the absolutism of imposed uniformity." Miller
413 U.S. at 33. Even more directly, the Supreme Court
stated in Miller that "our nation is simply too big and too
diverse for this Court to reasonably expect that such
standards [of what is patently offensive] could be
articulated for all 50 states in a single formulation. . . . To
require a State to structure obscenity proceedings around
evidence of a national `community standard' would be an
exercise in futility." Id. at 30 . We therefore conclude that
the interpretation of "contemporary community standards"
is not "readily susceptible" to a narrowing construction of
"adult" rather than "geographic" standard.
With respect to the second salvaging mechanism, it is an
" `elementary principle that the same statute may be in part
constitutional and in part unconstitutional, and that if the
parts are wholly independent of each other, that which is
constitutional may stand while that which is
unconstitutional will be rejected' " Brockett v. Spokane
Arcades, Inc., 472 U.S. 491, 502 (1985) (quoting Allen v.
Louisiana, 103 U.S. 80, 83-84 (1881)). As a result, if it is
possible for a court to identify a particular part of the
statute that is unconstitutional, and by striking only that
language the court could leave the remainder of the statute
intact and within the intent of Congress, courts should do
so. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684-85
(1987).
Here, however, striking "contemporary community
standards" from COPA is not likely to succeed in salvaging
COPA's constitutionality as this standard is an integral part
of the statute, permeating and influencing the whole of the
statute. We see no means by which to excise those
"unconstitutional" elements of the statute from those that
are constitutional (assuming for the moment, without
deciding, that the remaining clauses of COPA are held to be
constitutional). This is particularly so in a preliminary
injunction context when we are convinced that the very test
or standard that COPA has established to determine what
is harmful to minors is more likely than not to be held
unconstitutional. See Brockett, 472 U.S. at 504-05.
29
Our foregoing discussion that under either approach-- of
narrowing construction or deleting an unconstitutional
element -- COPA is not "readily susceptible" to a
construction that would make it constitutional. We agree
with the Second Circuit that "[t]he State may not regulate
at all if it turns out that even the least restrictive means of
regulation is still unreasonable when its limitations on
freedom of speech are balanced against the benefits gained
from those limitations." Carlin Communications, Inc. v. FCC,
837 F.2d 546, 555 (2d Cir. 1988). As regulation under
existing technology is unreasonable here, we conclude that
with respect to this first prong of our preliminary injunction
analysis, it is more likely than not that COPA will be found
unconstitutional on the merits.22
_________________________________________________________________
22. Although our concern here has been with the overbreadth of the
"contemporary community standards" clause, we recognize that if we
were to address that portion of COPA which speaks to communications
made for commercial purposes, 47 U.S.C. S 231(e)(2)(A), the Supreme
Court has taught that "[f]or the purposes of applying the overbreadth
doctrine . . . it remains relevant to distinguish between commercial and
noncommercial speech." Village of Schaumburg v. Citizens for a Better
Environment, 444 U.S. 620, 632 n.7 (1980). For instance, it has declined
to apply the overbreadth doctrine to statutes regulating commercial
advertising:
[T]he justification for the application of overbreadth analysis
applies
weakly, if at all, in the ordinary commercial context . . . [T]here
are
`commonsense differences' between commercial speech and other
varieties. Since advertising is linked to commercial well-being, it
seems unlikely that such speech is particularly susceptible to
being
crushed by overbroad regulation. Moreover, concerns for uncertainty
in determining the scope of protection are reduced .. .
Bates v. State Bar of Arizona, 433 U.S. 350, 380-81 (1977) (citations
omitted). See also Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm'n of New York, 447 U.S. 557, 564 n.6 (1980) ("[C]ommercial
speech, the offspring of economic self-interest, is a hardy breed of
expression that is not `particularly susceptible to being crushed by
overbroad regulation.' ").
However, although COPA regulates the commercial content of the Web,
it amounts to neither a restriction on commercial advertising, nor a
regulation of activity occurring "in the ordinary commercial context."
Bates, 433 U.S. at 380-81. As we have noted, the Web is a new type of
30
Our holding in no way ignores or questions the general
applicability of the holding in Miller with respect to
"contemporary community standards." We remain satisfied
that Miller's "community standards" test continues to be a
useful and viable tool in contexts other than the Internet
and the Web under present technology. Miller itself was
designed to address the mailing of unsolicited sexually
explicit material in violation of California law, where a
publisher could control the community receiving the
publication. Miller, however, has no applicability to the
Internet and the Web, where Web publishers are currently
without the ability to control the geographic scope of the
recipients of their communications. See Reno II , 521 U.S. at
889 (O'Connor, J., concurring in judgment in part and
dissenting in part) (noting that the "twin characteristics of
geography and identity" differentiate the world of Ginsberg
[and Miller] from that of the Internet.).
B. Irreparable Harm By Denial of Relief
The second prong of our preliminary injunction analysis
requires us to consider "whether the movant will be
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medium which allows the average person with relatively little capital
investment to place content on it for a commercial purpose. The speech
such Web sites provide is in far greater danger of being stifled by
government regulation than the commercial advertising at issue in cases
such as Bates and Central Hudson Gas.
As the Supreme Court has also made clear, the benefits gained by the
challenged statute must also outweigh the burden imposed on
commercial speech. See Elrod v. Burns, 427 U.S. 347, 363 (1976);
Greater New Orleans Broad. Ass'n, Inc. v. United States, 527 U.S. 173,
188 (1999) (in regulating commercial speech, "the regulation may not be
sustained if it provides only ineffective or remote support for the
government's purpose."). The Supreme Court has repeatedly stated that
the free speech rights of adults may not be reduced to allow them to
read only what is acceptable for children. See Bolger v. Young Drug Prods
Corp., 463 U.S. 60, 74-75 (1983) ("The level of discourse reaching a
mailbox simply cannot be limited to that which would be suitable for a
sandbox."). See also Sable, 492 U.S. at 127. Therefore, there is no
inconsistency between our position that COPA is overbroad, and the line
of authority refusing to apply overbreadth analysis to certain types of
commercial speech.
31
irreparably harmed by denial of the relief." Allegheny
Energy, Inc. v. DQE, Inc. 171 F.3d 153, 158 (3d Cir. 1999).
Generally, "[i]n a First Amendment challenge, a plaintiff
who meets the first prong of the test for a preliminary
injunction will almost certainly meet the second, since
irreparable injury normally arises out of the deprivation of
speech rights." Reno I, 929 F. Supp. 824 at 866. This case
is no exception.
If a preliminary injunction were not to issue, COPA-
affected Web publishers would most assuredly suffer
irreparable harm -- the curtailment of their constitutionally
protected right to free speech. As the Supreme Court has
clearly stated, "the loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes
irreparable injury." Elrod v. Burns, 427 U.S. 347, 373
(1976). We, therefore, conclude that this element of our
preliminary injunction analysis has been satisfied.
C. Injury Outweighs Harm
The third prong of our preliminary injunction analysis
requires us to consider "whether granting preliminary relief
will result in even greater harm to the nonmoving party."
Allegeny Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999).
We are convinced that in balancing the parties' respective
interests, COPA's threatened constraint on constitutionally
protected free speech far outweighs the damage that would
be imposed by our failure to affirm this preliminary
injunction. We are also aware that without a preliminary
injunction, Web publishers subject to COPA would
immediately be required to censor constitutionally protected
speech for adults, or incur substantial financial costs to
implement COPA's affirmative defenses.23 Therefore, we
affirm the District Court's holding that plaintiffs sufficiently
met their burden in establishing this third prong of the
preliminary injunction analysis.
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23. These costs with respect to Web publishers and to those who desire
access to those Web sites were enumerated by the District Court in its
findings of fact.
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D. Public Interest
As the fourth and final element of our preliminary
injunction analysis, we consider "whether granting the
preliminary relief will be in the public interest." Allegeny
Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999).
Curtailing constitutionally protected speech will not
advance the public interest, and "neither the Government
nor the public generally can claim an interest in the
enforcement of an unconstitutional law." Reno I, 929 F.
Supp. at 866. Having met this final element of our
preliminary injunction analysis, the District Court properly
granted the ACLU's petition for a preliminary injunction.
III. CONCLUSION
Due to current technological limitations, COPA --
Congress' laudatory attempt to achieve its compelling
objective of protecting minors from harmful material on the
World Wide Web -- is more likely than not to be found
unconstitutional as overbroad on the merits.24 Because the
ACLU has met its burden in establishing all four of the
necessary elements to obtain a preliminary injunction, and
the District Court properly exercised its discretion in
issuing the preliminary injunction, we will affirm the
District Court's order.
In so affirming, we approvingly reiterate the sentiments
aptly noted by the District Court: "sometimes we must
make decisions that we do not like. We make them because
they are right, right in the sense that the law and the
Constitution, as we see them, compel the result." Reno III,
31 F. Supp. 2d at 498.25 We also express our confidence
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24. Although much attention at the District Court level was focused on
the availability, virtues and effectiveness of voluntary blocking or
filtering
software that can enable parents to limit the harmful material to which
their children may otherwise be exposed, the parental hand should not
be looked to as a substitute for a congressional mandate. See also n.16
supra.
25. "When sensitive matters of freedom of speech collide with images of
children's vulnerability, and are framed in terms of the battle between
good and evil, even well intentioned people can lose sight of fundamental
constitutional principles." Catherine J. Ross, Anything Goes: Examining
the State's Interest in Protecting Children from Controversial Speech, 53
VAND. L. REV. 427, 521 (2000).
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and firm conviction that developing technology will soon
render the "community standards" challenge moot, thereby
making congressional regulation to protect minors from
harmful material on the Web constitutionally practicable.
Indeed, in the context of dealing with technology to prevent
the "bleeding" of cable transmissions, the Supreme Court in
United States v. Playboy Entertainment Group, Inc., 2000
WL 646196 at *4 (U.S. May 22, 2000) recognized, as do we,
that "technology may one day provide another solution."
Therefore, we will affirm the District Court's order dated
February 1, 1999, issuing a preliminary injunction.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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