Complaint for Declaratory and Injunctive Relief in ACLU v. Reno II

Complaint for Declatory and Injunctive Relief in ACLU v. Reno II








Civil Action No. _______
  1. Congress has enacted a broad censorship law that imposes severe criminal and civil penalties on the availability, display and dissemination of constitutionally protected, non-obscene materials on the Internet by making it a crime to "knowingly . . . by means of the World Wide Web, make[] 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. § 231(a)(1) (hereinafter 47 U.S.C. § 231 is referred to as the "Act"). Under the Act, any speech that some community might consider to be "harmful to minors" -- including Ken Starr's report on the Clinton-Lewinsky scandal or a Mapplethorpe photograph -- is potentially criminal if displayed for free on the World Wide Web (the "Web") and accessible by minors. This action seeks to have the Act declared unconstitutional under the First and Fifth Amendments of the United States Constitution, both on its face and as applied to plaintiffs, and to enjoin the government from enforcing it. 
  2. The Act's constitutional flaws are identical to the flaws that led the Supreme Court to strike down the Communications Decency Act (the "CDA"), in Reno v. American Civil Liberties Union, 521 U.S. __, 117 S. Ct. 2329 (1997). The effect of the Act, like the CDA, is to restrict adults from communicating and receiving expression that is clearly protected by the Constitution. 
  3. Plaintiffs represent a broad range of individuals and entities who are speakers, content providers, and users of the Web. Plaintiffs include online magazines, booksellers, media companies, art vendors, and gay and lesbian content providers. The Act directly violates the First Amendment rights of plaintiffs, their members and tens of millions of other speakers to communicate protected expression on the Web. In addition, the Act violates the rights of millions of Web users to access and view constitutionally protected speech, including the right to do so anonymously. 
  4. The Act regulates and restricts speech on the Web. The Internet in general, and the Web in particular, represents the most participatory marketplace of mass speech yet developed -- it is in many ways a far more speech-enhancing medium than radio or television, print, the mails, or even the village green. With a few simple tools and at a very low cost, the Web enables average citizens and small businesses, as well as large corporations, to publish online newspapers, distribute electronic pamphlets, participate in local or worldwide conversations, and communicate with a broader audience than ever before possible. The vast majority of information on the Web is available for free, even when it is created and provided by commercial entities or individuals hoping to make a profit. Thus, the Web also provides millions of users with access to a vast range of free information and resources. Web users are far from passive listeners -- rather, they are empowered with the tools to seek out exactly the information they need and to respond with their own information if desired. 
  5. The Act does not restrict the sale of speech on the Web. In fact, the Act provides an explicit defense for providers who charge for their speech by credit or debit card. Rather, the Act explicitly and purposefully bans a wide range of protected expression that is provided for free on the Web by organizations and entities who happen to be communicating on the Web "for commercial purposes." 
  6. In addition, because of the way the Web works, the Act's prohibition on certain communications with minors effectively would ban those same communications between adults. The Act targets both written and visual expression that is constitutionally protected for adults, including, for example, valuable works of literature and art, safer sex information, examples of popular culture, and a wide range of robust human discourse about current issues and personal matters that may include provocative or sexually oriented language. There are no reasonable means for speakers to ascertain the age of persons who access their free Web communications, or to restrict or prevent access by minors to their content. Thus, the Act will reduce the adult population in cyberspace to reading and communicating only material that is suitable for young children. In addition, because the Act makes no allowance for the varying levels of maturity of minors of different ages, the Act prohibits speech that is valuable and constitutionally protected for older minors, but that may not be appropriate for younger children. 
  7. The speech at issue in this case does not include obscenity, child pornography, or speech used to entice or lure minors into sexual activity; such speech is already illegal under existing law. 


  8. This case arises under the United States Constitution and the laws of the United States and presents a federal question within this Court's jurisdiction under Article III of the federal Constitution and 28 U.S.C. §§ 1331 and 1361. 
  9. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. 
  10. The Court has the authority to award costs and attorneys' fees under 28 U.S.C. § 2412. 
  11. Venue is proper in this district under 28 U.S.C. § 1391(e). 


  12. The Act, to be codified at 47 U.S.C. § 231, was signed into law on October 21, 1998 as part of the Omnibus Appropriations Act. Unless enjoined, the Act will become effective thirty days after the date of enactment. 
  13. The Act imposes criminal and civil penalties for "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. § 231(a)(1). 
  14. Persons who violate Section 231(a) "shall be fined not more than $50,000, imprisoned not more than 6 months, or both." 47 U.S.C. § 231(a)(1). Section 231(a)(2) states that "[i]n addition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation." 47 U.S.C. § 231(a)(2). 
  15. Section 231(a)(3) states that "whoever violates paragraph (1) shall be subject to a civil penalty of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation." 47 U.S.C. § 231(a)(3). 
  16. The Act defines material that is "harmful to minors" as "any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that -- (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, artistic, political, or scientific value for minors." 47 U.S.C. § 231(e)(6). 
  17. The Act defines "minor" as "any person under 17 years of age." 47 U.S.C. § 231(e)(7). 
  18. The Act defines the phrase "by means of the World Wide Web" to mean "by placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol." 47 U.S.C. § 231(e)(1). 
  19. The Act defines "commercial purposes" as being "engaged in the business of making such communications." 47 U.S.C. § 231(e)(2)(A). 
  20. The Act defines "engaged in the business" as meaning "that the person 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). A person may be considered to be engaged in the business of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such material to be posted on the World Wide Web." 47 U.S.C. § 231(e)(2)(B). 
  21. Section 231(b) of the Act attempts to exempt certain persons from liability. It states: "For purposes of subsection (a), a person shall not be considered to make any communication for commercial purposes to the extent that such person is -- (1) a telecommunications carrier engaged in the provision of a telecommunications service; (2) a person engaged in the business of providing an Internet access service; (3) a person engaged in the business of providing an Internet information location tool; or (4) similarly engaged in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the content of the communication, except that such person's deletion of a particular communication or material made by another person in a manner consistent with subsection (c) or section 230 shall not constitute such selection or alteration of the content of the communication." 
  22. Section 231(c) of the Act provides an affirmative defense if 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 account, 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 feasible under available technology." 47 U.S.C. § 231(c)(1). 
  23. Section 231(d) of the Act forbids the disclosure of "any information collected for the purposes of restricting access to such communications" to minors without prior consent. 47 U.S.C. § 231(d)(1)(A). 
  24. The Act does not define the distinction between what constitutes a "knowing" violation under § 231(a)(1) and an "intentional" violation under § 231(a)(2). 
  25. The Act makes no distinction between material that may be "harmful" to very young minors and material that may be "harmful" to older minors. 
  26. The Act does not define the relevant "community" for purposes of determining what is "harmful to minors" in the global medium of cyberspace. 
  27. The Act does not define what comprises a work "considered as a whole" in the context of the Web, which is a seamless, interconnected set of texts, sound and graphics provided by different content providers and located on different computers around the world. 
  28. Congress passed the Act despite a letter from the Department of Justice (the "DOJ") dated October 5, 1998 to the Chairman of the House Committee on Commerce, Representative Thomas Bliley, stating that the Act raises "difficult constitutional issues" in light of Reno v. American Civil Liberties Union, 521 U.S. __, 117 S. Ct. 2329 (1997). See Department of Justice letter dated October 5, 1998 to the Chairman of the House Committee on Commerce, Representative Thomas Bliley (the "DOJ Letter") at 3. The DOJ also emphasized the "numerous ambiguities concerning the scope" of the Act's coverage. DOJ Letter at 4. In addition, the DOJ expressed doubt that the Act "would have a material effect in limiting minors' access to harmful materials" given that "children would still be able to obtain ready access to pornography from a myriad of overseas web sites." DOJ Letter at 3. In light of the constitutional problems and doubtful efficacy of the Act, the Department of Justice concluded that it did "not believe that it would be wise to divert the resources that are used for important initiatives [such as fighting child pornography and thwarting child predators] to prosecutions of the kind contemplated under the [Act]." DOJ Letter at 3. 


  29. The named plaintiffs are briefly described below. The impact of the Act on the plaintiffs' communications is described more fully in paragraphs 81-190. 
  30. Plaintiff AMERICAN CIVIL LIBERTIES UNION ("ACLU") is a nationwide, nonpartisan organization of nearly 300,000 members dedicated to defending the principles of liberty and equality embodied in the Bill of Rights. The ACLU is incorporated in the District of Columbia and has its principal place of business in New York City. 
  31. Plaintiff A Different Light BOOKSTORES maintains a Web site through which visitors can purchase books and music by, about, and for gay and lesbian individuals and can receive information about the gay and lesbian community. Androgyny Books, Inc. d/b/a A Different Light Bookstores is incorporated in California and has its principal places of business in New York, New York, San Francisco, California and West Hollywood, California. 
  32. Plaintiff AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION ("ABFFE") was organized as a not-for-profit organization by the American Booksellers Association in 1990 to inform and educate booksellers, other members of the book industry, and the public about the dangers of censorship and to promote and protect the free expression of ideas, particularly freedom in the choice of reading materials. ABFFE has over 300 member bookstores, primarily in the United States. ABFFE is incorporated in Delaware, and has its principal place of business in New York, New York. 
  33. Plaintiff ARTNET WORLDWIDE CORPORATION ("ArtNet") is the leading fine art vendor on the Web. ArtNet is incorporated in New York and has its principal place of business in New York, New York. 
  34. Plaintiff BLACKSTRIPE is a Web-based resource for gay and lesbian individuals of African descent. BlackStripe is operated by an individual residing in Wilmington, Delaware using a server located in California. 
  35. Plaintiff CONDOMANIA is the nation's first condom store and is a leading online seller of condoms and distributor of safer-sex related materials. Addazi, Inc. d/b/a Condomania is incorporated in Massachusetts and has its principal place of business in Los Angeles, California. 
  36. Plaintiff ELECTRONIC FRONTIER FOUNDATION ("EFF") is a nationwide, nonprofit organization of approximately 2,000 paying individual members that is committed to defending civil liberties in the world of computer communications, to developing a sound legal framework for that world, and to educating government, journalists, and the general public about the legal and social issues raised by this new medium. EFF is incorporated in California and has its principal place of business in San Francisco, California. 
  37. Plaintiff ELECTRONIC PRIVACY INFORMATION CENTER ("EPIC") is a non-profit research organization that collects and distributes information concerning civil liberties and privacy issues arising in the new communications media. EPIC is a project of the Fund for Constitutional Government (the "Fund"), a tax-exempt organization incorporated in the District of Columbia. Both EPIC and the Fund have their principal places of business in the District of Columbia. 
  38. Plaintiff Free Speech Media, LLC is a Colorado limited liability for-profit corporation. Free Speech Media, LLC operates a project called Free Speech Internet Television ("FSITV"), which promotes independent audio and video content on the Web. While the FSITV Web site is designed to encourage the democratic expression of progressive ideals, it welcomes the contribution of materials regardless of ideology. FSITV believes that such democratic media can and will improve the cultural and political fabric of society by diversifying the exchange of information. FSITV's base of operations is located in Colorado. 
  39. Plaintiff INTERNET CONTENT COALITION (the "ICC") is a nonprofit professional association of providers of original content for the Internet. ICC is incorporated in New York and has its principal place of business in Westtown, Pennsylvania. Members of the ICC include many well-known and high-profile providers of original content on the Web such as: CNET, MSNBC, Sony Online, The New York Times, Time, Inc., and ZDNet. 
  40. Plaintiff OBGYN.NET is a comprehensive international online resource center for professionals in Obstetrics and Gynecology, the medical industry, and the women they serve. is a service and publication that has its principal place of business in Austin, Texas, and that is wholly owned by Elecomm Corporation, which is incorporated in Texas. 
  41. Plaintiff PHILADELPHIA GAY NEWS has been the leading print newspaper for the gay and lesbian community of Philadelphia for 22 years. It now also publishes on the Web. It is a for-profit corporation that is incorporated in Pennsylvania and has its principal place of business in Philadelphia, Pennsylvania. 
  42. Plaintiff PLANETOUT CORPORATION is a leading online content provider for gay, lesbian, bisexual and transgendered persons. It is a for-profit corporation that is incorporated in Delaware and has its principal place of business in San Francisco, California. 
  43. Plaintiff Powell's Bookstore operates a bookstore in Portland, Oregon and also maintains a Web site through which visitors can purchase new, used, rare and out-of-print books. Powell's Bookstore is incorporated in Oregon and has its principal place of business in Portland, Oregon. 
  44. Plaintiff RIOTGRRL is a popular "Webzine" that advocates positive empowerment and support for women. RiotGrrl's mission is to foster discussion, action, and growth for women through the Web. RiotGrrl is incorporated in Florida and has its principal place of business in Fort Myers, Florida. 
  45. Plaintiff SALON INTERNET, INC. ("Salon Magazine") is a leading online magazine featuring articles on current events, the arts, politics, the media, and relationships, as well as regular columns by well-known writers. Salon Magazine is a for-profit corporation that is incorporated in California and has its principal place of business in San Francisco, California. 
  46. Plaintiff WEST STOCK, INC. ("West Stock") maintains a Web site that displays and sells licenses for stock photographs. In addition, West Stock sells licenses to many images that are not available on its Web site. West Stock is incorporated in Washington and has its principal place of business in Seattle, Washington. 
  47. Defendant ATTORNEY GENERAL JANET RENO heads the United States Department of Justice, which is the agency of the United States government responsible for enforcement of federal criminal laws, including the statute at issue in this case. 


    The Internet

  48. The Internet is a decentralized, global medium of communications that links people, institutions, corporations and governments around the world. It is a giant computer network that interconnects innumerable smaller groups of linked computer networks and individual computers. While estimates are difficult due to its constant and rapid growth, the Internet is currently believed to connect more than 159 countries and over 100 million users. The amount of traffic on the Internet is doubling approximately every 100 days. 
  49. Because the Internet merely links together numerous individual computers and computer networks, no single entity or group of entities controls the material made available on the Internet or limits the ability of others to access such materials. Rather, the range of digital information available to Internet users is individually created, maintained, controlled and located on millions of separate individual computers around the world. 
  50. The Internet presents extremely low entry barriers to anyone who wishes to provide or distribute information or gain access to it. Unlike television, cable, radio, newspapers, magazines or books, the Internet provides the average citizen or small business with an affordable means for communicating with, accessing and posting content to a worldwide audience. 

    The World Wide Web

  51. The World Wide Web (the "Web") is the most popular way to provide and retrieve information on the Internet. Anyone with access to the Internet and proper software can post content on the Web, which may contain many different types of digital information -- text, images, sound, and even video. The Web is comprised of millions of separate but interconnected "Web sites," which in turn may have hundreds of separate "Web pages," that display content provided by particular persons or organizations. Any Internet user anywhere in the world with the proper software can create her own Web page, view Web pages posted by others, and then read text, look at images and video, and listen to sounds posted at these sites. 
  52. To gain access to the information available on the Web, a person uses a Web "browser" -- software, such as Netscape Navigator, Mosaic, or Internet Explorer -- to display, print and download documents that use hypertext transfer protocol ("http"), the standard Web formatting language. Each document on the Web has an address that allows users to find and retrieve it. Most Web documents also contain "links." These are short sections of text or image that refer and link to another document. Through the use of these links from one computer to another, from one document to another, the Web for the first time unifies the diverse and voluminous information made available by millions of users on the Internet into a single body of knowledge that can be easily searched and accessed. 
  53. A number of search engines and directories -- such as Yahoo, Infoseek, and Lycos -- are available free of charge to help users navigate the Web. Once a user has accessed the search service, she simply types a word or string of words as a search request and the search service provides a list of sites that match the search string. 

    How Individuals Access the Web

  54. Individuals have several easy means of gaining access to the Web. Internet service providers ("ISPs") offer their subscribers modem access to computers or networks linked directly to the Internet. Most ISPs charge a modest monthly fee, but some provide free or very low-cost access. National "commercial online services," such as America Online, CompuServe, and Microsoft Network, serve as ISPs and also provide subscribers with additional services, including access to extensive content within their own proprietary networks. In addition, many educational institutions, libraries, businesses, and individual communities maintain a computer network linked directly to the Internet and thus the Web, and provide account numbers and passwords enabling users to gain access to the network. 
  55. Most users of the Internet are provided with a username, password and e-mail address that allow them to log on to the Internet and to communicate with other users. Many usernames are pseudonyms or pen names that provide users with a distinct online identity and help to preserve their anonymity and privacy. The username and e-mail address are the only indicators of the user's identity; that is, persons communicating with the user will only know them by their username and e-mail address (unless the user reveals other information about herself through her communications). 

    Other Means of Exchanging Information Through The Web

  56. The Web also allows individuals to communicate in discussion groups and chat rooms and by e-mail using hypertext transfer protocol. Many Web sites use software applications, sometimes called "middleware," to provide users of their sites with access to discussion groups and chat rooms. For example, PlanetOut sponsors a variety of discussion groups and chat rooms in which anyone visiting its Web site can participate. 
  57. Discussion groups allow users of computer networks to post messages onto a public computerized bulletin board and to read and respond to messages posted by others in the discussion group. Discussion groups have been organized to cover virtually every topic imaginable. Chat rooms allow users to engage in simultaneous conversations with another user or group of users by typing messages and reading the messages typed by others participating in the "chat." 
  58. Online discussion groups and chat rooms create an entirely new global public forum where individuals can associate and communicate with others who have common interests, and engage in discussion or debate on every imaginable topic. 
  59. Finally, it is possible to set up an account for electronic mail, commonly referred to as "e-mail," using the Web. Several commercial Web sites such as Yahoo and Hotmail will provide free e-mail accounts to individuals. These accounts allow individuals to use the Web to create, send, and receive e-mails with other individuals. Such accounts allow individuals who do not possess their own computer or Internet access account to establish a permanent e-mail address and to correspond with other individuals by using the Web at public libraries and other public Internet access sites. 
  60. As can be seen from the various ways that individuals can exchange information and communicate via this technology, the Web is "interactive" in ways that distinguish it from traditional media. For instance, users are not passive receivers of information as with traditional broadcast media; rather, users can easily respond to the material they receive or view online. In addition, "interactivity" means that Web users must actively seek out with specificity the information they wish to retrieve and the kinds of communications in which they wish to engage. For example, to gain access to material on the Web, a user must know and type the address of a relevant site or find the site by typing a relevant search string into a search engine. 

    The Range of Content Available on the Web

  61. Content on the Web is provided by the millions of Web users worldwide, and the content ranges from art, to humor, to literature, to medical information, to music, to news, to sexually oriented material. For example, on the Web, one can view the full text of the Bible, read The New York Times, or peruse an article on the supermarket industry. One can browse through paintings from art galleries around the world, view in

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