Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion to Dismiss







Civ. Act. No. 98-CV-5591


Plaintiffs hereby submit this Memorandum of Law in Opposition to Defendant's Motion to Dismiss, pursuant to Pretrial Order No. 5.


Defendant has filed a motion to dismiss Plaintiffs' challenge to the Child Online Protection Act ("COPA"), 47 U.S.C. § 231, because she alleges that the Plaintiffs lack standing to bring their claims. As discussed more fully below, Plaintiffs clearly have standing to bring a facial challenge to COPA because it directly threatens the rights of Plaintiffs and millions of other Internet speakers and users to communicate protected speech. Boiled down to its essence, Defendant's argument is in fact a request for the Court to re-write COPA to cure its constitutional defects. Her argument in no way defeats Plaintiffs' standing, because Plaintiffs are at risk of prosecution under COPA if their interpretation of the statute is correct. See American Booksellers Ass'n v. Virginia, 484 U.S. 383, 392 (1988). Moreover, given the plain language of the statute, there is simply no way for the Court to rewrite COPA to cure its fatal overbreadth, or to eliminate its chilling effect on protected speech. See Reno v. ACLU, 117 S. Ct. 2329, 2350 (1997) ("ACLU I"); Blount v. Rizzi, 400 U.S. 410, 419 (1971).

Defendant is unclear as to whether she is bringing a motion to dismiss for lack of standing under Fed. R. Civ. P. 12(b)(6) or 12(b)(1), but she clearly relies on several of Plaintiffs' declarations. (See, e.g., Def.'s Br. at 28-31, 43-50). 1 If treated as a 12(b)(6) motion, the Court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501 (1975). Thus, Defendant's motion must be denied because Plaintiffs have alleged that the law directly harms their ability to communicate constitutionally protected speech.

Given the current posture of this case, and the hearing scheduled for January 20-22, 1999 on Plaintiffs' motion for a preliminary injunction, Plaintiffs suggest that the Court treat Defendant's motion as a 12(b)(1) motion, and consider the materials submitted at the hearing in resolving the motions of both parties. As Plaintiffs argue in their legal memoranda, and will establish through the evidence at the hearing, Plaintiffs are likely to succeed in their claim that COPA violates the First Amendment on its face because it threatens with criminal and sever civil penalties a large amount of speech that adults are constitutionally entitled to communicate. Thus, Plaintiffs' motion for a preliminary injunction should be granted, and Defendant's motion to dismiss should be denied.



Defendant largely ignores the Supreme Court case directly on point that clearly establishes Plaintiffs' standing to challenge COPA. In Virginia v. American Booksellers Ass'n, the Supreme Court considered whether booksellers and membership organizations had standing to challenge a state "harmful to minors" law. See Virginia v. American Booksellers Ass'n, 484 U.S. 383, 384 (1988). The statute made it a crime to "display" materials that were harmful to minors for commercial purposes in a manner whereby "juveniles [may] examine and peruse" them. Id. at 383. Plaintiffs challenged the law on its face, arguing that it "substantially restrict[ed] access to adults because of the economically devastating and extremely restrictive measures booksellers must adopt to comply," and that the law was overbroad and vague. Id. at 388. Noting that it was "not troubled by the pre-enforcement nature of the suit," id. at 393, the Supreme Court applied well-accepted rules in First Amendment cases to hold that Plaintiffs clearly had standing to challenge the statute.

To bring a cause of action in federal court requires that there be some "'threatened or actual injury resulting from the putatively illegal action.'" American Booksellers Ass'n, 484 U.S. at 392 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975) (citations omitted). Plaintiffs meet that requirement in challenging COPA, just as the booksellers did in American Booksellers Ass'n, because "the law is aimed directly at Plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution." Id. (citing Craig v. Boren, 429 U.S. 190 (1976); Doe v. Bolton, 410 U.S. 179, 188 (1973)). Plaintiffs have provided numerous examples in the Complaint, and will introduce evidence at the preliminary injunction hearing, of speech they communicate that may violate COPA, and of the significant burdens imposed by COPA's defenses.2 Thus, Plaintiffs, like the booksellers, have alleged "an actual and well-founded fear that the law will be enforced against them." American Booksellers Ass'n, 484 U.S. at 393.

Under American Booksellers Ass'n, Plaintiffs also clearly have standing to assert the rights of third parties because they are challenging COPA on its face:

[I]n the First Amendment context litigants are permitted to challenge a statute not because their own rights to free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.

Id. at 392-93 (quoting Secretary of State of Maryland v. Munson, 467 U.S. 947, 956-57 (1984)).

American Booksellers Ass'n is indicative of a long line of cases holding that standing rules are relaxed in First Amendment cases, particularly facial challenges to content-based regulations of speech. 3

A. Plaintiffs Have Standing to Challenge COPA On Its Face

Defendant's standing argument never addresses the primary claim Plaintiffs bring in this case: that COPA is constitutionally invalid on its face because it suppresses "a large amount of speech that adults have a constitutional right to receive and to address to one another." ACLU I, 117 S. Ct. at 2346. Defendant thus ignores the nature and purpose of First Amendment facial challenges to overbroad statutes, and the corresponding reasons for the relaxed standing rules in such cases. Facial challenges are critically important in the area of First Amendment rights precisely because, as the Supreme Court explained in New York State Club, statutes drawn too broadly "'create[] an impermissible risk of suppression of ideas.'" New York State Club Ass'n v. City of New York, 487 U.S. 1, 11 (1988) (quoting City Council v. Taxpayers for Vincent, 466 U.S. 789, n. 15 (1984)); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992); Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Facial invalidation is called for where

[a] statute imposes a direct restriction on protected First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the State's objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech.

Munson, 467 U.S. at 967-68 (citing Villiage of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980)).

Facial challenges by their nature ask the Court to enjoin a law even as to parties not before the Court, and necessarily provide litigants with third-party standing to assert the rights of others. Thus, each Plaintiff in this case has third-party standing to challenge COPA on its face as overbroad because COPA threatens to chill not just their own speech, but "the expression of [persons] not before the court." Forsyth County, 505 U.S. at 123.4 The doctrine of third-party standing arose in substantial overbreadth cases in order to permit facial challenges to laws that may inhibit free expression "almost as easily by the potential or threatened use of power as by the actual exercise of that power." Id.; see also Broadrick, 413 U.S. at 611-13; Brockett v. Spokane Arcades, 472 U.S. 491, 504 (1985); Board of Trustees v. Fox, 492 U.S. 469, 484, (1989), aff'd 42 F.3d 135 (2d Cir. 1994); National Treasury Employees Union v. United States, 990 F. 2d 1271, 1280 (D.C. Cir. 1993) (Randolph, J., concurring) (citing numerous cases), aff'd in part, rev'd in part on other grounds, 513 U.S. 454 (1995). The right to bring a facial challenge ensures that affected speakers and listeners will not have to self-censor their speech until each possible application of the statute is litigated on a case-by-base basis. See ACLU I, 929 F. Supp. at 867 & n.3; American Library Ass'n v. Pataki, 969 F. Supp. at 160, 167-68; ACLU v. Johnson, 4 F. Supp. 2d at 1029, 10335.

Applying this well-established case law, this Court can and should deny Defendant's motion to dismiss because each of the Plaintiffs clearly has standing to challenge COPA on its face.6 Only if the Court ultimately rules on the merits that COPA is not invalid on its face would it be necessary for the Court to decide whether Plaintiffs have standing to challenge COPA as applied to each of them individually.

B. Plaintiffs Have Standing to Challenge COPA As Applied to Them

Even if the Court were required to determine whether Plaintiffs had standing to challenge the law as applied to them individually, Defendant's argument clearly fails. In challenges to statutes that threaten fundamental rights, the standing requirement does not require a litigant to be prosecuted or actually threatened with prosecution before he may challenge the statute. See American Booksellers Ass'n, 484 U.S. at 389-90; Doe v. Bolton, 410 U.S. 179, 188 (1973). Rather, a litigant need only show a "reasonable threat of prosecution for conduct allegedly protected by the Constitution." Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 625 n.1 (1986).

Here, each Plaintiff has a reasonable fear of prosecution under COPA because each engages in speech that is constitutionally protected as to adults, but that may be "harmful to minors" as proscribed by COPA. Each Plaintiff has alleged that COPA's defenses impose an unconstitutional burden on its ability to communicate protected speech to adults. This allegation of burden is more than sufficient to confer standing to challenge COPA. 7See American Booksellers Ass'n, 484 U.S. at 392; Erznoznik v. City of Jacksonville, 422 U.S. 205, 217 (1975). See also ACLU I, 117 S. Ct. at 2349-50; American Library Ass'n, v. Pataki, 969 F. Supp. 160, 180 (S.D.N.Y. 1997); ACLU v. Johnson, 4 F. Supp. 2d. 1029, 1031-32 (D.N.M. 1998). Given the nature of the Internet, each Plaintiff will be forced to self-censor speech or face prosecution under COPA. Forcing speakers to decide between Scylla and Charybdis, as COPA does, presents a concrete harm, not just an allegation of "subjective 'chill,'" as Defendant suggests.

Defendant claims that each Plaintiff's "fear of prosecution" under COPA is not "credible." (Def's. Br. at 22). When Defendant proffered this argument in Reno, the Court noted that "[i]n recent First Amendment challenges, the Supreme Court has itself paid close attention to extreme applications of content-based laws." ACLU I, 929 F. Supp. at 870. The Court held that "[i]f a content-based law 'can produce such an outcome', then [we may] consider those outcomes in our analysis." Id. (quoting Simon & Schuster, Inc. v. Members of New York Crime Victims Board, 502 U.S. 105, 123 (1991) (internal cites omitted). In Simon & Schuster, the Supreme Court held that a law requiring criminals to provide to their victims income from works describing their crimes violated the First Amendment. The Court considered the claim that the law could have been applied to works such as The Autobiography of Malcolm X, Civil Disobedience, or even the writings of Martin Luther King, Jr., even though the Court considered the claim to be "hyperbole." Simon & Schuster, 502 U.S. at 121-22; see also National Treasury Employees Union, 513 U.S. at 464-65 (noting that a ban on Federal employees receiving honoraria could reach "literary giants like Nathaniel Hawthorne and Herman Melville, ...Walt Whitman, . . . and Bret Harte").

As discussed, infra at III, each Plaintiff's fear of prosecution is not based on hyperbole, but on the necessary interpretation of the scope of COPA created by the plain language of COPA. However, even if the Court were to consider some of Plaintiffs' claims as exaggerated, "hyperbolic claims do not themselves weigh in the Government's favor." ACLU I, 929 F. Supp. at 870. Plaintiffs' speech could be prosecuted under COPA because the "harmful to minors" standard, "like the definition of obscenity, is not a rigid formula. Rather, it confers a large degree of autonomy to individual communities to set the bounds for decency for themselves." Id. at 871. Defendant's claim that federal prosecutors will use their discretion to apply the law heightens, rather than diminishes, the level of COPA's constitutional infirmity. ACLU I, 929 F. Supp. at 857 (the Department of Justice "is not a monolithic structure, and individual U.S. Attorneys in various districts of the country have or appear to exercise some independence . . . the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors").


The remainder of the arguments in Defendant's motion to dismiss are not arguments that would defeat Plaintiffs' standing, but rather are arguments to construe the statute narrowly to avoid its overbreadth, and thus to urge the Court not to enjoin COPA. All of Defendant's arguments ignore the plain language of the statute. Defendant also relies on case law and other statutes that are either wholly irrelevant, or do nothing to support Defendant's proposed interpretation of COPA.

A. The cases cited by Defendant are wholly irrelevant to plaintiffs' fear under COPA

Defendant first asserts that the "harmful to minors" definition was approved by the Supreme Court in Ginsberg v. New York, 390 U.S. 629 (1968). She then illogically suggests that the use of similar language in COPA "requires Plaintiffs to do more to demonstrate that they face a credible threat of prosecution under COPA than had Congress chosen to use some new and untested definition." (Def.'s Br. at 13). First, there is no case law to support Defendant's claim that standing rules in First Amendment cases are somehow impacted by the amount of precedent cited by lawyers. Second, Defendant's arguments are an attempt to cure the statute's overbreadth, and have no impact on the Plaintiffs' standing. Third, neither Ginsberg nor the other cases cited by the Defendant diminish COPA's overbreadth, which arises from the application of a harmful to minors restriction to adults. In Ginsberg, the Supreme Court considered the constitutionality of a restriction on the face-to-face sale of material that is "harmful to minors" directly to minors. Unlike COPA, the statute in Ginsberg did not impact adult speech and did not address the problems posed by applying "harmful to minors" restrictions to online communications. See ACLU I, 929 F. Supp. at 859 (noting that restrictions relying on Ginsberg "that have been found constitutional were sensitive to the unique qualities of the medium at which the restriction was aimed"). Thus, Ginsberg and its progeny do nothing to alleviate the burden that COPA imposes on communications to adults.

Next, throughout section I.A. of Defendant's brief, she conflates adult obscenity cases and even child pornography cases in an attempt to narrow the plain language of COPA. For instance, the Defendant cites an obscenity case, Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985), for the proposition that material which "does no more than arouse, a 'good, old fashioned, healthy' interest in sex" would not violate the "prurient interest" prong of COPA. (See Def.'s Br. at 14). Because by definition the category of "prurience" that can be regulated through a harmful to minors law is broader than the category that can be proscribed for adults in obscenity statutes, the case does nothing to diminish Plaintiffs' fears that they could be prosecuted under COPA.

Defendant likewise cites a child pornography case, Osborn v. Ohio, 495 U.S. 103, 112 (1990), for the proposition that "'mere' nudity is not enough to render material 'harmful to minors'" under the second prong of COPA. (See Def.'s Br. at 14). Defendant argues that since the statute in Osborn required "a graphic focus on the genitals" before material could be termed "lewd," that the same standard must be met before material can be deemed "harmful to minors" under COPA. Again whether speech can be prohibited even for adults under child pornography laws is simply not relevant to determining whether the material may be "harmful to minors" under COPA. Defendant's claims ignore her own admission that COPA regulates a much broader category of material than can be constitutionally proscribed for adults. (See Def.'s Br. at 11).


Defendant also wrongly suggests that state harmful-to-minors laws undermine Plaintiffs' fear of prosecution under COPA. (See Def.'s Br. at 18). In fact, there is no comparable state or federal statute, and no case law, to which Plaintiffs and other speakers can look to allay their fears of prosecution.

COPA is the only federal harmful-to-minors statute. Indeed, COPA is the first federal harmful-to-minors statute in any medium. Far from there being "decades of settled law developing the scope" of COPA's harmful-to-minors standard, as Defendant asserts (see Def.'s Br. at 18), in fact there has never been a federal prosecution of material that is "harmful to minors." Because COPA is a federal law, and because Plaintiffs' communications are all available nationwide and worldwide, Plaintiffs must worry not just about their local prosecutors, but about federal prosecutors all over the country. In addition, COPA outlaws speech according to whether it is offensive to "community standards," and Plaintiffs have no way of knowing when someone from a particular community will access their speech and put them at risk of prosecution. Plaintiffs' risk of prosecution from any community anywhere in the United States is thus quantitatively much greater than their risk of prosecution under any state harmful to minors law.

For a variety of reasons, the state harmful-to-minors statutes provide no guidance whatsoever to speakers as to how COPA's restrictions of online speech would be applied by federal prosecutors. First, none of the state laws cited by Defendant deal with the unique problems presented by regulation of online speech. Compare American Literary Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997); ACLU v. Johnson, 4 F. Supp. 2d. 1029 (D.N.M. 1998). Second, Defendant argues that "[m]ore than forty states have laws that regulate the sale and/or distribution of material deemed 'harmful to minors.'" (See Def.'s Br. at 12). But, many of these statutes regulate only the direct sale to minors of material that is "harmful to minors."8 These statutes, like the similar statute in Ginsberg and in stark contrast to COPA, do not interfere with adult speech at all. See discussion supra at 9-11. A smaller number of states have statutes that regulate the display, in the physical world, of material that is harmful to minors. See, e.g., Del. Code tit. 11 § 1365; Ga. Code § 16-12-103 (1996); Ind. Code § 35-49-3-3 (1996). These statutes have been narrowly construed by lower courts to avoid the constitutional problems they impose on speech for adults and older minors, and their constitutionality has never been considered by the Supreme Court. See, e.g., American Booksellers Ass'n, 372 S.E. 2d 618 (Va. 1988) (answering certified question from 484 U.S. 383 (1988)); American Booksellers Ass'n v. Webb, 919 F.2d 1493 (11th Cir. 1990); Davis-Keld Booksellers, Inc. v. McWhaten, 866 S.W. 2d 520 (Tenn. 1993).

Third, the definition of the prohibited speech in COPA is far less detailed than the descriptions of the prohibited speech in many of the state laws. Many of these state statutes provide detailed definitions of "sexual conduct" and analogous terms, making the statutes much less vague than COPA. 9 In contrast, COPA nowhere defines "sexual act or conduct," "normal or perverted sexual act," or "post-pubescent female breast." In ACLU I, the Supreme Court held that a similar lack of specificity contributed to the unconstitutional vagueness and chilling effect of the CDA. ACLU I, 117 S. Ct. at 2345.

Fourth, COPA prohibits material consisting entirely of written words. In contrast, some state harmful-to-minors statutes do not apply purely to textual materials. See, e.g., North Carolina (N.C. Gen. Stat. § 14-190.13 (1997)): South Carolina (S.C. Code Ann. § 16-15-375 (1997)); Arkansas (Ark. Code. § 5-68-502); Colorado (Col. Rev. Stat. § 18-7-502(1)): North Carolina (N.C. Code § 14-190.13); South Carolina (S.C. Code § 16-15-385).

Fifth, COPA's value-to-minors prong does not exclude material that has "educational" or "medical" value for minors. In contrast, many state harmful-to-minors statutes do not restrict speech that has "educational" or "medical" value as to minors. 10 Congress' decision not to include the terms "educational" or "medical" in COPA's harmful-to-minors prong increases Plaintiffs' fear that they could be prosecuted for providing sexual health material over the Web. (Pls. Decl. E (Speyer) at ¶¶12, 15, 19-22, 16; Pls. Decl. E (Speyer) at Exs. 2, 3, 5, 10; Pls. Decl. B (Glickman) at Exs. 1-7; Pls. Tr. Ex. 5 (Laurila), 83-89 (Tepper). 11

Finally, to the extent that case law concerning state harmful-to-minors laws is relevant at all to Plaintiffs' fear under COPA, there is in fact case law to support Plaintiffs' fear that material such as theirs could be prosecuted. See Wisconsin v. Stankus, No. 95-2159-CR, 1997 Wisc. App. LEXIS 138 at * 2-3 (Wisc. App. Feb. 13, 1997) (upholding conviction for exposing a child to harmful material by displaying a photograph showing "a woman with a shirt and jacket open to the waist, without exposing her nipples" because the court read the statute to apply to "any part of the breast which is below a horizontal line drawn parallel to the top of the nipple.");12see also Vachon, 306 A.2d. 781, 784 (D.N.H. 1973) (holding that the sale of a button with the slogan "Copulation Not Masturbation" was obscene as to minors under Ginsberg), rev'd on other grounds, 414 U.S. 478 (1974); Bookcase Inc. v. Broderick, 18 N.Y.2d 71, 73, 218 N.E.2d 668, 620, 271 N.Y.S. 2d 947, 949 (Fanny Hill falls within the scope New York's "harmful to minors" law), rev'd on other grounds, 414 U.S. 454 (1966); American Library Ass'n v. Pataki 969 F. Supp. at 160 (plaintiffs communicating broad range of valuable speech found to have standing because of credible fear of prosecution under harmful to minors law); ACLU v. Johnson, 4 F. Supp. 2d. at 1029 (same).


Defendant also suggests that COPA can be narrowly construed to exclude plaintiffs and to include only "commercial pornographers." But the plain language of COPA provides Plaintiffs and millions of other speakers on the Web with reason to fear that they could be prosecuted, and thus supports Plaintiffs' argument that COPA is unconstitutionally overbroad.

A. Plaintiffs Reasonably Fear Prosecution under COPA

COPA defines material that is "harmful to minors" as:

[a]ny 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 manor 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). Thus, the plain language of COPA sweeps both written communications as well as pictures within its scope; indeed, COPA purports to regulate all forms of material communicated over the Internet. COPA would criminalize any representation of a "sexual act or sexual contact" whether "actual or simulated" or "normal or perverted," and any "lewd" display of the "female breast," that any community may find "patently offensive with respect to minors."

Defendant concedes that COPA "cover[s] some broader category of speech" than could be constitutionally be proscribed as to adults. (Def's. Br. at 11). Ignoring the plain language of COPA, however, Defendant insists that COPA should be construed to restrict only material that is "clearly pornographic and inappropriate for minor children."13 Defendant's non-binding construction does nothing to alleviate Plaintiffs fear of prosecution or the chill created by such a fear. See Adult Video Ass'n v. Barr, 960 F.2d 781, 785 (9th Cir. 1992) (although there had been no instance of pre-trial seizure in RICO obscenity cases, the fact that the plain language of the statute authorized such seizures created a reasonable fear sufficient to confer standing to challenge statute). Here, Plaintiffs have no reason to believe that they will not face criminal prosecution or civil penalties for their sexually explicit speech, which fits so squarely within the proscribed conduct of COPA. COPA cannot be narrowly construed to exclude Plaintiffs' speech without ignoring a great deal of text which Congress included in the statute.

Defendant argues that because material prohibited by COPA requires that it be considered "as a whole," Plaintiffs have no fear of prosecution. See 47 U.S.C. § 231(e)(6)(A) & (C). Plaintiffs' fear is bolstered by this language, however, because COPA does not address what part of the speaker's communications should be considered when material is "taken as a whole." The nature of the Internet allows material belonging to one speaker to be divided up over many separate Web pages. For instance, ArtNet's Web site includes photographs (Pls. Decl. D (Johnson) at Exs. 10-12) from Andres Serrano's series "A History of Sex," all of which are about sex and depict nudity and strong sexual content. COPA is unclear as to whether ArtNet's entire Web site, the Web pages containing the particular series, a single Web page, or a single photograph on a page will be judged as the whole. See City of Cincinnati v. Contemporary Arts Ctr., 566 N.E. 2d 214, 216-17 (Ohio Mun. 1990) (holding that in obscenity trial involving Robert Mapplethorpe exhibition that each individual photograph has a separate identity); see also Kois v. Wisconsin, 408 U.S. 229, 231 (1972) (reviewing court does not require the jury to consider the whole exh

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