Third Circuit Court of Appeals Decision in ACLU v. Reno II

Filed June 22, 2000




in her official capacity as ATTORNEY GENERAL OF THE UNITED STATES

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) 

No. 99-1324 


       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
       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
       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
       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
       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,
       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
       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
       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
       Bruce J. Ennis
       Jenner & Block
       601 13th Street, N.W.
       12th Floor
       Washington, D.C. 20005
       Attorney for Amicus Curiae-Appellee
       Internet Education Foundation
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."
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.
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).
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."
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).
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
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
       (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).
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).
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.

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