AMERICAN LIBRARY ASSOCIATION; FREEDOM TO READ FOUNDATION, INC.; NEW YORK LIBRARY ASSOCIATION; WESTCHESTER LIBRARY SYSTEM; AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION; ASSOCIATION OF AMERICAN PUBLISHERS, INC.; BIBLIOBYTES, INC.; MAGAZINE PUBLISHERS OF AMERICA, INC.; INTERACTIVE DIGITAL SOFTWARE ASSOCIATION; PUBLIC ACCESS NETWORKS CORPORATION; ECHO; NEW YORK CITY NET; ART ON THE NET; PEACEFIRE; and AMERICAN CIVIL LIBERTIES UNION,
GEORGE PATAKI, in his official capacity as Governor of the State of New York; and DENNIS VACCO, in his official capacity as Attorney General of the State of New York,
97 Civ. 0222 (LAP)
LORETTA A. PRESKA, United States District Judge:
The Internet may well be the premier technological innovation of the present age. Judges and legislators faced with adapting existing legal standards to the novel environment of cyberspace struggle with terms and concepts that the average American five-year-old tosses about with breezy familiarity.1 Not surprisingly, much of the legal analysis of Internet-related issues has focused on seeking a familiar analogy for the unfamiliar. Commentators reporting on the recent oral argument before the Supreme Court of the United States, which is considering a First Amendment challenge to the Communications Decency Act, noted that the Justices seemed bent on finding the appropriate analogy which would tie the Internet to some existing line of First Amendment jurisprudence: is the Internet more like a television? a radio? a newspaper? a 900-line? a village green? See. e.g., Linda Greenhouse, What Level of Protection for Internet Speech? High Court Weighs Decency-Act Case, N. Y. Times, March 24, 1997, at C5; see also Denver Area Educ. Telecommunications Consortium v. Federal Communics. Comm'n, 116 S. Ct. 2374, 2419-21 (1996) (Thomas, J., concurring in the judgment and dissenting in part) (criticizing the majority for declining to determine whether cable television is more closely analogous, for purposes of First Amendment analysis, to a print medium or a broadcast medium). This case, too, depends on the appropriate analogy. I find, as described more fully below, that the Internet is analogous to a highway or railroad. This determination means that the phrase "information superhighway" is more than a mere buzzword; it has legal significance, because the similarity between the Internet and more traditional instruments of interstate commerce leads to analysis under the Commerce Clause.
The plaintiffs in the present case filed this action challenging New York Penal Law § 235.21(3) (the "Act" or the "New York Act"), seeking declaratory and injunctive relief. Plaintiffs contend that the Act is unconstitutional both because it unduly burdens free speech in violation of the First Amendment and because it unduly burdens interstate commerce in violation of the Commerce Clause. Plaintiffs moved for a preliminary injunction enjoining enforcement of the Act; defendants opposed the motion. A factual hearing was held from April 3 to April 7, 1997 and oral argument conducted on April 22, 1997. For the reasons that follow, the motion for a preliminary injunction is granted.
I. Parties to the Action
Plaintiffs in the present action represent a spectrum of individuals and organizations who use the Internet to communicate, disseminate, display, and access a broad range of communications. All of the plaintiffs communicate online both within and outside the State of New York, and each plaintiff's communications are accessible from within and outside New York. Plaintiffs include:
· American Library Association, Freedom to Read Foundation, Inc., New York Library Association, and Westchester Library System are organizations representing the interests of libraries. Libraries serve as both access and content providers on the Internet, providing their patrons with facilities to access the Internet. Libraries also post their card catalogues, information about upcoming events and online versions of text or art from their collections, as well as sponsoring chat rooms.
· American Booksellers Foundation For Free Expression ("ABFFE") is a national association of general interest and specialized bookstores formed to protect free expression rights. ABFFE has many members who use the Internet and electronic communications to obtain from publishers information and excerpts, some of which may contain sexually explicit passages.
· Association of American Publishers ("AAP") is a national association of publishers of general books, textbooks, and educational materials. AAP has many members who actively use and provide content on the Internet, both creating and posting electronic products and using the Internet as a communication and promotional tool for their print publishing activities.
· BiblioBytes is a private, profit-seeking enterprise that uses the World Wide Web (the "Web") to provide information about and to sell electronic books. BiblioBytes offers titles in a variety of genres, including romance, erotica, classics, adventure, and horror.
· Magazine Publishers of America ("MPA") is a national association of publishers of consumer magazines. MPA's members publish magazines in print form, but are also beginning to offer publications in electronic formats available to the public on the Internet or through online service providers.
· Interactive Digital Software Association ("IDSA") is a non-profit trade association of United States publishers of entertainment software. IDSA has many members who both sell their software in retail outlets and make their entertainment software available to the public on the Internet for demonstration, purchase, and play.
· Public Access Networks Corporation ("Panix") is an Internet service provider serving subscribers located in the New York area. Panix also hosts various organizational Web pages, assists its subscribers in creating individual Web pages, and hosts online discussion groups and chat rooms.
· ECHO is a for-profit Internet service provider that offers a "virtual salon" to Internet users. ECHO and its subscribers provide content on the Internet through the posting of Web sites, including personal home pages, and through over 50 discussion groups oriented to subscribers' interests.
· New York City Net ("NYC Net") is a for-profit Internet service provider catering primarily to lesbians and gay men in the New York area. NYC Net provides access services and content specifically oriented to gay and lesbian interests, including a large number of online discussion groups and chat rooms.
· Art on the Net is a non-profit organization with an international artist site ("art.net") on the Web. Art on the Net assists over 110 artists from all over the world in maintaining online studios.
· Peacefire is an organization whose membership consists primarily of minors. It was formed to protect the rights of citizens under the age of 18 to use the Internet. Peacefire's members use the Internet to communicate and access a wide variety of information. Peacefire's founder points out in his Declaration that Internet access is particularly important to those members who are too young to drive and might otherwise be unable to view materials from museums, libraries, and other institutions to which their families are unwilling to transport them. (See Declaration of Bennett Haselton, sworn to on March 12, 1997, at p. 4.
· American Civil Liberties Union ("ACLU") is a national civil rights organization. The ACLU maintains a Web site on which it posts civil liberties information and resources, including material about arts censorship, obscenity laws, discrimination against lesbians and gays, and reproductive choice. In addition, the ACLU hosts unmoderated online discussion groups that allow citizens to discuss and debate a variety of civil liberties issues.
Defendants in this case are the Governor and the Attorney General of New York. Defendants have raised the question of whether an injunction against those parties would also bind the sixty-two District Attorneys in New York who would actually be mounting prosecutions against alleged violators of the Act. Fed. R. Civ. P. 65(d) provides:
Every order granting an injunction . . . is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
Thus, parties such as the local District Attorneys who "participate" in the enjoined activities with defendants and who have actual notice of the injunction would be bound. See American Booksellers v. Webb, 590 F. Supp. 677, 693-94 (N.D. Ga. 1984) (holding that an injunction against the Attorney General also binds state law enforcement officials who might seek to enforce the challenged Act); see also United Transportation Union v. Long Island RR Co., 634 F.2d 19, 22 (2d Cir. 1980) (binding non-party Attorney General to the terms of an injunction against the defendants because Attorney General "undoubtedly had knowledge of the instant action and could have participated therein had he chosen to do so"), rev'd on other grounds, 455 U.S. 678 (1982). Thus, a preliminary injunction would effectively bar enforcement of the Act whether the prosecution happened to be brought directly by the Attorney General's office or by one of the individual District Attorneys.
II. The Challenged Statute
The Act in question amended N.Y. Penal Law § 235.21 by adding a new subdivision. The amendment makes it a crime for an individual:
Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, [to] intentionally use any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor.
Violation of the Act is a Class E felony, punishable by one to four years of incarceration. The Act applies to both commercial and non-commercial disseminations of material.
Section 235.20(6) defines "harmful to minors" as:
that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado- masochistic abuse, when it:
(a) Considered as a whole, appeals to the prurient interest in sex of minors; an
(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(c) Considered as a whole, lacks serious literary, artistic, political and scientific value for minors.
N.Y. Penal Law § 235.20 (6).
The statute provides six defenses to liability. First, Section 235.15(1) provides the following affirmative defense to prosecution under § 235.21(3):
In any prosecution for obscenity, or disseminating indecent material to minors in the second degree in violation of subdivision three of section 235.21 of this article, it is an affirmative defense that the persons to whom the allegedly obscene or indecent material was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, educational, governmental or other similar justification for possessing, disseminating or viewing the same.
The statute further provides four regular defenses to prosecution:
(a) The defendant made a reasonable effort to ascertain the true age of the minor and was unable to do so as a result of the actions taken by the minor; or
(b) The defendant has taken, in good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to materials specified in such subdivision, which may involve any appropriate measures to restrict minors from access to such communications, including any method which is feasible under available technology; or
(c) The defendant has restricted access to such materials by requiring use of a verified credit card, debit account, adult access code or adult personal identification number; or
(d) The defendant has in good faith established a mechanism such that the labelling, segregation or other mechanism enables such material to be automatically blocked or screened by software or other capabilities reasonably available to responsible adults wishing to effect such blocking or screening and the defendant has not otherwise solicited minors not subject to such screening or blocking capabilities to access that material or circumvent any such screening or blocking.
N.Y. Penal Law § 235.23(3). And, finally, Section 235.24 provides that no individual shall be held liable:
[S]olely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that do not include the creation of the content of the communication.
N.Y. Penal Law § 235.24. Exceptions to this defense for conspirators or co-owners and an additional employer liability defense are set forth in Section 235.24(1)(a)-(b) and (2).
III. The Internet2
The Internet is a decentralized, global communications medium linking people, institutions, corporations, and governments all across the world. ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa.), prob. juris. noted, 117 S. Ct. 554 (1996), argued, March 19, 1997; Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996), argued, March 19, 1997. The nature of the Internet makes it very difficult, if not impossible, to determine its size at any given moment. Undoubtedly, however, the Internet has experienced extraordinary growth in recent years. In 1981, fewer than 300 computers were linked to the Internet; in 1989, the number stood at fewer than 90,000 computers. By 1993, over 1,000,000 computers were linked. Today, over 9,400,000 host computers worldwide, 60% of them located in the United States, are linked to the Internet. This count does not include users who access the Internet via modem link-up from their personal computers. As many as 40 million people worldwide currently enjoy access to the Internet's rich variety of resources, and that number is expected to grow to 200 million by the year 1999.
The Internet is a network of networks -- a decentralized, self-maintaining series of redundant links among computers and computer networks, capable of rapidly transmitting communications without direct human involvement or control. No organization or entity controls the Internet; in fact, the chaotic, random structure of the Internet precludes any exercise of such control.
The information available on the Internet is "as diverse as human thought," ACLU, 929 F. Supp. at 842. Every facet of art, literature, music, news, and debate is represented. There can be no question that the overwhelming variety of available information includes some sexually explicit materials. Sexually-oriented content is, however, not "the primary type of content on this new medium.'' Id.
Individuals obtain access to the Internet via a number of avenues. Students and faculty often obtain access via their educational institutions; similarly, some corporations provide their employees with direct or modem access to the Internet. Individuals in some communities can access the Internet via a community network or a local library that provides direct or modem access to library patrons. Storefront "computer coffee shops" offer another option, serving up access to cyberspace accompanied by coffee and snacks for a small hourly fee. "Internet service providers" typically offer modem telephone access to a computer or computer network linked to the Internet. Many such providers -- including plaintiffs Panix, Echo, and NYC NET -- are commercial entities offering Internet access for a monthly or hourly fee. Another common way for individuals to access the Internet is through one of the major national commercial "online services" such as America Online, Compuserve, the Microsoft Network, or Prodigy, which collectively service almost twelve million individual subscribers across the United States. These online services offer nationwide computer networks (allowing subscribers to dial in via a local telephone number) and provide both proprietary content and links to the even more extensive resources of the Internet for a monthly or hourly fee. Finally, local dial-in computer services, called "bulletin board systems" or ''BBSs" provide Internet access via direct or indirect links.
The Internet permits a user to communicate pictures and text in several ways including:
(1) one-to-one messaging (such as "e-mail");
(2) one-to-many messaging (such as "listserv" or "mail exploder");
(3) distributed message databases (such as "USENET newsgroups");
(4) real time remote computer utilization (such as "Internet Relay Chat");
(5) real time remote computer utilization - (such as "telnet"); and
(6) remote information retrieval (such as "ftp," "gopher," and the Web).
In addition to transmitting pictures and text, many of these communication methods can be used to transmit data, computer programs, sound, and moving video images.
Most users of the Internet are provided with a username, password and e-mail address that allow them to sign on to the Internet and communicate with other users. Many usernames are pseudonyms, known as "handles," which provide users with a distinct online identity and preserve anonymity. For example, Ms. Kovacs testified that she uses the handle "Harriet Vane" when communicating with fellow mystery aficionados in the "Dorothy L" listserv and the nom de cyber "Mrs. Archangel" when she's just "goofing off" on the Internet. (4/4/97 Tr., at 58). The username and e-mail address are the only indicators of a user's identity; generally speaking, neither datum discloses a party's age or geographic location.
E-mail is the simplest method of Internet communication. E-mail allows an online user to address and transmit an electronic message to one or more people. The ACLU court noted that e-mail is "comparable in principle to sending a first class letter." ACLU, 929 F. Supp. at 834. The analogy is not a perfect one, however, for two reasons. First, the sender directs his message to a logical rather than geographic address, and therefore need not know the location of his correspondent in real space. Second, most programs provide for a "reply" option which enables the recipient to respond to the sender's message simply by clicking on a button; the recipient will therefore not even need to type in the sender's e-mail address. A further distinction concerns the level of security that protects a communication. While first-class letters are sealed, e-mail communications are more easily intercepted. Concerns about the relatively easy accessibility of e-mail communications have led bar associations in some states to require that lawyers encrypt sensitive e-mail messages in order to protect client confidentiality. See Carey Ramos & Curtis Carmack, Beware of Cyberspace Marauders: Internet Security Addressed, N.Y.L.J., February 24, 1997, at S1.
The Internet also includes a wide variety of online discussion fora that allow groups of users to discuss and debate subjects of interest. The three most common means by which such discussion groups come together are through mail exploders, USENET newsgroups, and chat rooms.
Mail exploders, also known as "listservs," allow online users to subscribe to automated mailing lists that disseminate information on particular subjects. Subscribers send an e-mail message to the "list," and the mail exploder automatically and simultaneously sends the message to all of the other subscribers on the list. Users of mailing lists can add or delete their names from the list automatically, without any direct human involvement. Id. at 834; Shea, 930 F. Supp. at 927.
USENET newsgroups are a very popular set of discussion groups arranged according to subject matter and automatically disseminated "using ad hoc peer to peer connections between approximately 200,000 computers . . . around the world." ACLU, 929 F. Supp. at 834-35. Users may read or send messages to newsgroups without any prior subscription, and there is no way for a speaker who posts an article to a newsgroup to know who is reading the message. Id.; Shea, 930 F. Supp. at 927-28. Currently, more than 15,000 different subjects are represented in USENET newsgroups, and over 100,000 new messages are posted to these groups every day. ACLU, 929 F. Supp. at 835.
Chat rooms allow online discussion in real time. Users are able to engage in simultaneous conversations with one or many "occupants" by typing in messages and reading the messages typed by others participating in the chat; the ACLU court analogized this Internet application to a telephone party line. ACLU, 929 F. Supp. at 835; Shea, 930 F. Supp. at 928. There are thousands of different chat rooms available "in which collectively tens of thousands of users are engaging in conversations on a huge range of subjects." ACLU, 929 F. Supp. at 835.
Finally, perhaps the most well-known method of communicating information online is the Web; many laypeople erroneously believe that the Internet is co-extensive with the Web. The Web is really a publishing forum; it is comprised of millions of separate "Web sites" that display content provided by particular persons or organizations. Any Internet user anywhere in the world with the proper software can create a 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. Many large corporations, banks, brokerage houses, newspapers and magazines provide online editions of their reports and publications or operate independent Web sites. Government agencies and even courts use the Web to disseminate information to the public. At the same time, many individual users and small community organizations have established individual "home pages" on the Web that provide information to any interested person who "surfs by."
Although information on the Web is contained on innumerable Web sites located on individual computers around the world, each of these Web sites and computers is connected to the Internet by means of protocols that permit the information to become part of a single body of knowledge accessible by all Web visitors. ACLU, 929 F. Supp. at 836, 837. To gain access to the resources of the Web, an individual employs a "browser." A browser is software, such as Netscape Navigator, Mosaic, or Internet Explorer, that allows the user to display, print, and download documents that are formatted in the standard Web formatting language. Shea, 930 F. Supp. at 929.
There are a number of different ways that Internet users can browse or search for content on the Web. First, every document on the Web has an address that allows users to find and retrieve it, and a user can simply type in the address and go directly to that site. Again, however, the address is a logical rather than geographic concept, and the user will not necessarily know where the site is located in real space. Additionally, a user who wants to conduct a generalized search or wants to reach a particular site but does not know the address, can use a "search engine," which is available free of charge to help users navigate the Web. ACLU, 929 F. Supp. at 837. The user simply types a word or string of words as a search request, and the search engine provides a list of sites that match the search string. Id.
Finally, online users may "surf" the Web by "linking" from one Web page to another. Almost all Web documents contain "links," segments of text or images that refer to another Web document. Id. at 836. When the user clicks on the link, the linked document is automatically displayed, wherever in the world it is stored. Id. For example, the American Library Association ("ALA") home page contains several links. Some of these links are to other Web pages or documents within the ALA site, including documents entitled "Libraries Online," "Library Promotional Events," and the "ALA Bookstore." Other links from the ALA home page connect the user to sites maintained by other organizations or individuals and stored on other computers around the world. The ALA Web site, for example, provides links to the American Association of Law Libraries, the Art Libraries Society of North America, and the Medical Library Association. "These links from one computer to another, from one document to another across the Internet, are what unify the Web into a single body of knowledge, and what makes the Web unique." Id. at 836-37.
Regardless of the aspect of the Internet they are using, Internet users have no way to determine the characteristics of their audience that are salient under the New York Act -- age and geographic location. In fact, in online communications through newsgroups, mailing lists, chat rooms, and the Web, the user has no way to determine with certainty that any particular person has accessed the user's speech. "Once a provider posts content on the Internet, it is available to all other Internet users worldwide." Id. at 844. A speaker thus has no way of knowing the location of the recipient of his or her communication. As the poet said, "I shot an arrow into the air; it fell to the earth I know not where."
This highly simplified description of the Internet is not intended to minimize its marvels. While no one should lose sight of the inventiveness that has made this complex of resources available to just about anyone, the innovativeness of the technology does not preclude the application of traditional legal principles -- provided that those principles are adaptable to cyberspace. In the present case, as discussed more fully below, the Internet fits easily within the parameters of interests traditionally protected by the Commerce Clause. The New York Act represents an unconstitutional intrusion into interstate commerce; plaintiffs are therefore entitled to the preliminary injunction that they seek.
I. Standard Applicable to a Preliminary Injunction
To demonstrate their entitlement to a preliminary injunction, plaintiffs must show (a) that they will suffer irreparable harm and (b) either (i) a likelihood of success on the merits or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation3 and a balance of hardships tipping decidedly in the plaintiffs' favor. Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir. 1991); Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055, 1058 (S.D.N.Y. 1995). In the present case, as discussed more fully below, plaintiffs have amply demonstrated the likelihood of their successful prosecution of their claim that the Act violates the Commerce Clause because it seeks to regulate communications occurring wholly outside New York, imposes a burden on interstate commerce that is disproportionate to the local benefits it is likely to engender, and subjects plaintiffs, as well as other Internet users, to inconsistent state obligations. See Healy v. Beer Institute, 491 U.S. 324, 332 (1989); Pike v. Bruce Church. Inc., 397 U.S. 137, 142 (1970); Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767 (1945).
Plaintiffs have also shown that they face irreparable injury in the absence of an injunction. Irreparable injury means "the kind of injury for which money cannot compensate," Sperry Int'l Trade. Inc. v. Government of Israel, 670 F.2d 8, 12 (2d Cir. 1982), and which is "neither remote nor speculative, but actual and imminent." Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989). Deprivation of the rights guaranteed under the Commerce Clause constitutes irreparable injury. C & A Carbone. Inc. v. Town of Clarkstown, 770 F. Supp. 848, 854 (S.D.N.Y. 1991) (holding that a local waste disposal law caused irreparable injury to the plaintiffs' rights under the Commerce Clause). Thus, by demonstrat