Brief of the Appellees Filed in the Third Circuit Court of Appeals for ACLU v. Reno II

September 24, 1999

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT 


AMERICAN CIVIL LIBERTIES UNION; ANDROGYNY BOOKS, INC. d/b/a A DIFFERENT LIGHT BOOK STORES; AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION; ARTNET WORLDWIDE CORPORATION; BLACKSTRIPE; ADDAZI INC., d/b/a CONDOMANIA; ELECTRONIC FRONTIER FOUNDATION; ELECTRONIC PRIVACY INFORMATION CENTER; FREE SPEECH MEDIA; INTERNET CONTENT COALITION; OBGYN.NET; PHILADELPHIA GAY NEWS; PLANETOUT CORPORATION; POWELL'S BOOKSTORE; RIOTGRRL; SALON INTERNET, INC.; WEST STOCK, INC.,
Plaintiffs-Appellees,
v.
JANET RENO, in her official capacity as ATTORNEY GENERAL OF THE UNITED STATES,
Defendant-Appellant.
____________________________________
 

Case No. 99-1324

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

Make a Difference

Your support helps the ACLU defend privacy rights and a broad range of civil liberties.

Give Now

BRIEF OF PLAINTIFFS-APPELLEES 

Ann Beeson
Christopher A. Hansen
American Civil Liberties Union Foundation
125 Broad Street, 18th floor
New York, NY 10004
 
 
      
 
Stefan Presser
ACLU of Pennsylvania
125 South Ninth Street, Suite 701
Philadelphia, PA 19107
 
 
David L. Sobel
Electronic Privacy Information Center
666 Pennsylvania Ave. SE, Suite 301
Washington, DC 20003
 
 
      
 
Shari Steele
Electronic Frontier Foundation
6999 Barry's Hill Road
Bryans Road, MD 20616
 
 
Of Counsel to American Civil Liberties Union Foundation: 

Catherine E. Palmer
Latham & Watkins
885 Third Avenue
New York, NY 10022
 

 


STATEMENT OF THE ISSUE

Whether a federal criminal law that suppresses a large amount of speech on the World Wide Web that adults are entitled to communicate and receive violates the First Amendment. 

INTRODUCTION

Defendant appeals from a preliminary injunction barring enforcement of the Child Online Protection Act ("COPA"), which is Congress' second attempt to impose severe criminal sanctions on the display of constitutionally protected, non-obscene materials on the Internet.1 The first attempt, the Communications Decency Act ("CDA"), was rejected by all nine justices of the Supreme Court in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), aff'g, 929 F. Supp. 824 (E.D. Pa. 1996) ("ACLU I"). Recognizing that the Internet is a powerful "new marketplace of ideas" and "vast democratic for[um]" that is "dramatic[ally] expand[ing]" in the absence of government regulation, the Supreme Court imposed the highest level of constitutional scrutiny on content-based infringements of Internet speech. ACLU I, 521 U.S. at 870.

Before COPA was enacted, defendant wrote a seven-page letter to Congress outlining "serious concerns" about the bill and explaining why it "would likely be challenged on constitutional grounds." See Letter Dated October 5, 1998 from Department of Justice to Honorable Thomas Bliley, Chairman of House Committee on Commerce, at 1, 3 ("DOJ Letter") (Pls. Memorandum of Law in Support of TRO, Exhibit A). Congress passed COPA despite defendant's warnings, and despite the Supreme Court's strong precedent against content-based Internet regulations in ACLU I. COPA's constitutional flaws are ultimately identical to the flaws that led the Supreme Court to strike down CDA. Though COPA, like CDA, purports to restrict the availability of materials to minors, the district court correctly held that COPA effectively would restrict adults from communicating and receiving expression that the First Amendment clearly protects. Because COPA's criminal penalties threaten to suppress the speech of plaintiffs and millions of other speakers and users of the World Wide Web ("the Web"), plaintiffs ask this Court to affirm the judgment of the district court granting a preliminary injunction against enforcement of COPA.

STATEMENT OF THE CASE

COPA was signed into law on October 21, 1998. The next day, plaintiffs filed this suit alleging that COPA violated the First and Fifth Amendments to the Constitution and seeking injunctive relief from its enforcement. The district court heard six days of testimony and a day of argument, and considered numerous affidavits and extensive documentary evidence submitted by both sides.2 American Civil Liberties Union v. Reno, 31 F. Supp.2d 473, 477, 485, ¶24 & n.5 (E.D. Pa. 1999) ("ACLU II"). On February 1, 1999, the district court issued a preliminary injunction against enforcement of COPA, holding that plaintiffs were likely to succeed on their claim that COPA violates the First Amendment because it "imposes a burden on speech that is protected for adults," id. at 495, and because defendant could not prove that COPA is the "least restrictive means available to achieve the goal of restricting the access of minors to [harmful to minors] material," id. at 497.3

The district court supported its holding with extensive findings of fact, some of which were derived from a joint stipulation submitted by the parties. See id. at 481-92. Those findings, which defendant does not seriously dispute, describe the nature of communication and commercial activity on the Web, plaintiffs and their speech, COPA's effect on Web traffic, the burden and costs of implementing COPA's affirmative defenses, and the availability of less restrictive alternatives that enable parents (rather than defendant) to decide what their children should see.

STATEMENT OF FACTS

A. The Reach Of COPA: Plaintiffs And Their Speech

Plaintiffs represent a diverse range of individuals, entities, and organizations who range from cutting edge online magazines to long-established booksellers and large media. All plaintiffs use the Web to provide information on a variety of subjects, including sexually oriented issues that they fear could be construed as "harmful to minors." ACLU II, 31 F. Supp.2d at 484-85, ¶¶21, 24-26. Plaintiffs and their users post, read, and respond to content including resources on visual art and poetry; resources designed for gays and lesbians; information about obstetrics, gynecology, and sexual health; information about books and photographs; and online magazines. Id. at 484, ¶21. Several plaintiffs host Web-based discussion groups and chat rooms that allow readers to converse on various subjects. Id. at 484, ¶22. No plaintiff is a pornographer. Like the vast majority of speakers on the Web, plaintiffs provide virtually all of their online information for free. Id. at 484, ¶23. Nevertheless, all plaintiffs are engaged in speech "for commercial purposes" as defined in COPA because they all communicate with the objective of making a profit. Id. at 487, ¶33; 47 U.S.C.A. §231(e)(2)(B) (West Supp. 1999).

Several plaintiffs provided live testimony during the hearings. Salon Internet, Inc. (Salon Magazine) is a leading general interest online magazine featuring articles on current events, the arts, politics, the media, and sexuality. Joint Appendix ("J.A.") 139-40 (Talbot Testimony). Salon publishes a regular column entitled "Sexpert Opinion" by author and sex therapist Susie Bright. See generally J.A. 617-41 (Pls. PI Exhs.). Salon also hosts a very popular set of discussion groups called "Table Talk," to which three thousand messages are posted each day. J.A. 147-49 (Talbot Testimony). Salon archives its content, and its Web site contains tens of thousands of pages published over the last three years. J.A. 145, 147.

A Different Light Bookstore operates bookstores in three major cities, and maintains a comprehensive Web site with information about books of interest to the gay and lesbian community. J.A. 106-07, 601-16 (Laurila Testimony, Pls. PI Exhs.). Among other content, A Different Light's Web site includes reviews of books about sadomasochism and fetishism, and stories such as "Shame on Me," an autobiographical account of a young man's experience with masturbation. J.A. 106-07, 601-16.

Mitchell Tepper, a member of ACLU, owns and operates the Sexual Health Network Web site out of his home in Connecticut. The Sexual Health Network provides easy access to information about sexuality geared toward individuals with disabilities. The site includes information on how disabled persons can experience sexual pleasure, including articles on erectile dysfunction, the use of sex toys, and sexual surrogacy as a form of sexual therapy. ACLU II, 31 F. Supp.2d at 485, ¶25; J.A. 670-88 (Pls. PI Exhs.). The site also includes interactive components, such as a forum called "Love Bites" in which readers can ask experts questions about sexuality and a bulletin board where users can post comments. J.A. 672-85.

Internet Content Coalition is a nonprofit professional association that includes many well-known and high-profile providers of original content for the Web, including the New York Times, Reuter's, CBS News Media, MSNBC, CNET, and ZDNet. CNET, whose Vice President testified at the hearing, provides news and other content on various topics, including articles about sexually explicit video games and the online pornography industry. J.A. 642-651 (Pls. PI Exhs.).

PlanetOut is a Web site that acts as an online community for gay, lesbian, bisexual and transgendered people. The site includes, among other things, a bulletin board and chat rooms where users can discuss lesbian sexuality and post personal ads and where teenagers who live in remote locations can discuss their sexual orientation. J.A. 661-69 (Pls. PI Exhs.). PlanetOut also contains travel information, news, and entertainment listings of interest to the lesbian and gay community. J.A. 655-60 (Pls. PI Exhs.). The site is a valuable resource for "closeted" people who do not voluntarily disclose their sexual orientation due to fear of the reaction of others. ACLU II, 31 F. Supp.2d at 485, ¶26.4

B. The Challenged Statute

 

COPA imposes severe criminal and civil penalties on persons who 

 

knowingly and with knowledge of the character of the material, in interstate or foreign commerce 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.A. §231(a)(1)-(3).

COPA defines "commercial purposes" as being "engaged in the business of making such communications." 47 U.S.C.A. §231(e)(2)(A). COPA then 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).

47 U.S.C.A. §231(e)(2)(B).

Section 231(c)(1) of COPA provides an affirmative defense to prosecution 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.A. §231(c)(1); see also §231(b).

C. The Internet And The Web

1. Growth Of The Internet And The Web

The Internet is a decentralized, global medium of communications that links people, institutions, corporations and governments around the world. ACLU I, 929 F. Supp. at 831; ACLU II, 31 F. Supp.2d at 481, ¶0. The Internet's growth in recent years has been extraordinary. As of July 1998, more than 36.7 million host computers were connected to the Internet; approximately 70.2 million people of all ages use the Internet in the United States alone. ACLU II, 31 F. Supp.2d at 481-82, ¶1.

The Internet provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions. Id. at 482, ¶3. Individuals can access all content on the global Internet through an online service or Internet Service Provider for a modest monthly fee, and many individuals gain access at no charge through schools, employers, libraries, and community networks. Id. ¶4-6. Most Internet users are provided with a username, password and e-mail address that allow them to log on and access content on the Internet, and to communicate with other users. Many usernames are pseudonyms or pen names that provide users with a distinct online identity that helps preserve the anonymity that users are unwilling to relinquish in order to gain access to the Web. J.A. 227 (Hoffman Testimony). Given the low entry barriers to the Internet, it is no surprise that "content on the Internet is as diverse as human thought." ACLU II, 31 F. Supp.2d. at 482, ¶3.

2. Communicating And Exchanging Information Over The Web

The Web is currently the primary method of information distribution and retrieval on the Internet. Id. at 483, ¶10. The Web uses a standard format (hypertext transfer protocol or "HTTP") that allows Internet users to post and access documents on the Web containing text, images, sound, animation and moving video. Web documents can include links that are short sections of text or image referring to another Web document located elsewhere on the same Web site or on an entirely different computer that is connected to the Internet from elsewhere in the world. Id. at 483, ¶¶11, 14. Once a provider posts content on the Web, she "cannot prevent that content from entering any geographic community." Id. at 484, ¶18.

The Web contains a variety of interactive features, including chat rooms, discussion groups, and e-mail. Id. at 483, ¶9. Many Web sites incorporate these interactive features to increase traffic to their sites. Id. at 487, ¶35; J.A. 221 (Hoffman Testimony). As David Talbot, CEO of Salon, testified, the interactivity of the Web "is one of the most unique features of the new medium . . . . [I]t's the ability for the reader to argue back with the editors, to exchange their own views, to create their own content." J.A. 148.

3. Breadth Of Speech "For Commercial Purposes" 

On The Web Available To Users For Free

The growth of commercial activity on the Web has been explosive. ACLU I, 31 F. Supp.2d at 486, ¶¶27-28. Currently, approximately one third of the 3.5 million sites on the Web are commercial, i.e., they "intend to make a profit." Id. at 486, ¶27. A variety of business models operate on the Web. By far, the most popular business model is the advertiser supported or sponsored model, "in which nothing is for sale, content is provided for free, and advertising on the site is the source of all revenue." Id. at 486-87, ¶¶30, 31; J.A. 207 (Hoffman Testimony). The fee based or subscription model, in which users are charged a fee before accessing content, is the least popular. ACLU II, 31 F. Supp.2d at 486, ¶31.

Most Web businesses are not yet making a profit. J.A. 214-15 (Hoffman Testimony). Web businesses are valued according to "the number of customers they believe the Web site is able to attract and retain over time, or 'traffic.'" ACLU II, 31 F. Supp.2d at 487, ¶34; J.A. 216-20 (Hoffman Testimony). Traffic is "the most critical factor for determining success or potential for success on a Web site." ACLU II, 31 F. Supp.2d at 487. Because "[t]he best way to stimulate user traffic on a Web site is to offer some content for free to users . . . . virtually all Web sites offer at least some free content." Id. The "vast majority of information . . . on the Web . . . is provided to users for free." Id. at 484, ¶23.

4. Impact Of Mandatory Registration On The Web

COPA provides three affirmative defenses: (1) requiring the use of a credit card, debit account, adult access code, or adult personal identification number; (2) accepting a digital certificate that verifies age; or (3) any other reasonable measures feasible under available technology. The district court recognized that "[t]here is no certificate authority that will issue a digital certificate that verifies a user's age." Id. at 487, ¶37. Defendant put on no evidence of "other reasonable measures" available to restrict access to minors. Id. Thus, the evidence showed that the only technology currently available for compliance with COPA is online credit cards and adult access codes. Either option would require users to register and provide a credit card or other proof of identity before gaining access to restricted content. Id.

Web users are reluctant to provide personal information to Web sites "unless they are at the end of an online shopping experience and prepared to make a purchase." Id. at 487, ¶36. Web sites that have required registration or payment before granting access "have not been successful." Id. Professor Donna Hoffman, an expert on Web-based commerce and consumer behavior, gave uncontroverted testimony based on studies and observations of online behavior showing that "consumers on the Web do not like the invasion of privacy from entering personal information." Id.

Plaintiffs also testified that any mandatory registration would drive away their users. According to Mitch Tepper, users of the Sexual Health Network would not want to disclose personal information revealing their identity. Id. at 485, ¶25. Tepper, who is a sexuality educator and researcher, testified that persons who access the Sexual Health Network "have already been too embarrassed or ashamed to ask even their doctor. I think if they come across this barrier to access, that they are just not going to take the next step and put their name and credit card information in." J.A. 344. PlanetOut allows users to register voluntarily to receive free benefits, and "less than 10% of the users to [the] site have registered." ACLU II, 31 F. Supp.2d at 485-86, ¶26. Tom Rielly of PlanetOut testified that "the traffic to a competitor's site which had placed its entire content behind a credit card wall and charged users $10 per month only grew to 10,000 total [members]." Id.; J.A. 368. By contrast, PlanetOut has 350,000 members and over two million total users have accessed the PlanetOut Web site. J.A. 354-55, 368; see also J.A. 110-11, 134-35 (Laurila Testimony).

David Talbot, CEO of Salon Magazine, testified that Salon Magazine does not charge for a subscription because "the people who use the Web are not inclined to pay for it." J.A. 144. As Mr. Talbot explained, 

One of our competitors, Slate Magazine, which is owned and operated by Microsoft, launched originally as a free site like Salon did, but about a year ago decided to go to a [subscription] model with disastrous results for their circulation. Their circulation plummeted overnight from . . . over 150,000 individual users each month to about 20 to 30,000 . . . . That wouldn't be enough circulation to sustain Salon's business because advertisers expect you to have a certain circulation level before they'll do business with you. And, that typically is at least over 100,000 per month.

J.A. 144.

5. Additional Burdens Of Implementing COPA's Affirmative Defenses

a. Web-Based Chat Rooms And Bulletin Boards

Defendant's own expert agreed that "the only way to comply with COPA regarding potentially harmful-to-minors materials in chat rooms and bulletin boards is to require that a credit card screen or adult verification be placed before granting access to all users (adults and minors) to such fora, or to implement a full-time monitor on the site to read all content before it is posted." ACLU II, 31 F. Supp.2d at 491, ¶58. The content in Web-based interactive fora is inherently dynamic, and "there is no method by which the creators of those fora could block access by minors to harmful-to-minors materials and still allow unblocked access to the remaining content for adults and minors, even if most of the content in the fora was not harmful to minors." Id.

b. Adult Access Codes

There are about twenty-five services on the Web that will provide adult access codes to Web users in order to access a variety of adult Web sites. Id. at 489, ¶¶48, 52; J.A. 401 (Farmer Testimony). No standards govern the operation of these services, and content providers cannot ensure their security or reliability. J.A. 386-87 (Farmer Testimony). To obtain an adult access code, a user must provide identification information and pay a fee to the adult access service, normally by providing a credit card number online. ACLU II, 31 F. Supp.2d at 490, ¶51. Plaintiffs testified that their users would not choose to register for an adult access code, but would instead forgo accessing restricted content. J.A. 330-31, 344, 367-68, 370 (Barr, Tepper, Rielly Testimony).

A content provider that contracts with an adult access service is provided a script that must be placed in front of every restricted page. ACLU II, 31 F. Supp.2d at 489, ¶49. To avoid requiring users to re-enter their passwords repeatedly, the content provider would have to obtain and utilize additional software tools enabling it to place all restricted material in one directory behind the adult verification screen. J.A. 467-78 (Alsarraf Testimony). Without the use of these additional tools, any user could successfully "attempt[] an end-run around the screen" and go directly to a site that was meant to be restricted. ACLU II, 31 F. Supp.2d at 490, ¶53.

c. Credit Card Verification

To utilize COPA's credit card defense, a content provider "would need to undertake several steps."5 Id. at 488, ¶41. The steps include "(1) setting up a merchant account, (2) retaining the services of an authorized Internet-based credit card clearinghouse, (3) inserting common gateway interface, or CGI, scripts into the Web site to process the user information, (4) possibly rearranging the content on the Web site, (5) storing credit card numbers or passwords in a database, and (6) obtaining a secure server to transmit the credit card numbers." Id. The start-up costs range from "$300 . . . to thousands of dollars. . . ." Id. at 488, ¶42.

A normal credit card transaction involves an "authorize only" transaction, which determines whether the card is valid, and a "funds capture" transaction, which charges an amount to the user's credit card. Id. at 488, ¶45. The government was unable to prove that credit card verification services "will authorize or verify a credit card number in the absence of a subsequent funds capture transaction." Id. at 489, ¶45. Without such a service, a content provider would have to charge the user's credit card for accessing the content. J.A. 126, 129 (Laurila Testimony). Even if this service were available, the credit card company would charge the content provider $0.15 to $0.25 per authorization. ACLU II, 31 F. Supp.2d at 489, ¶45. Such per-authorization fees would allow users hostile to certain content to drive up costs to the provider by repeatedly accessing restricted content, J.A. 133 (Laurila Testimony).

Finally, because some minors "may legitimately possess a valid credit or debit card," they would have access to restricted content despite credit card verification. ACLU II, 31 F. Supp.2d at 489, ¶48.

d. Burdens Of Web Redesign 

COPA's credit card and adult access defenses would also require speakers to redesign their Web sites in order to restrict only their harmful to minors content. The district court found that the technological requirements for implementing credit card or adult access code verification to comply with COPA could be substantial - depending on the amount of content on a Web site, the amount of content that may be harmful to minors, the degree to which a Web site is organized into files and directories, the degree to which harmful-to-minors material is currently segregated into a particular file or directory, and the level of expertise of the Web site operator. Id. at 488, ¶¶39, 56. COPA would require some Web sites to reorganize and redesign literally millions of files. J.A. 158-59 (Talbot Testimony).

A content provider also would have to reorganize individual files and pages in order to restrict only content that could be harmful to minors. ACLU II, 31 F. Supp.2d at 490, ¶54. Even a single page of Web content could have some content prohibited under COPA and some that was not. "Text is more difficult to segregate than images, and thus if a written article contains only portions that are potentially harmful to minors, those portions cannot be hidden behind age verification screens without hiding the whole article or segregating those portions to another page." Id. at 490, ¶55.

6. User-Based Filtering Programs And Other Available Alternatives

At least forty percent of Web content originates abroad, and may be accessed by minors as easily as content that originates locally. Id. at 484, ¶20. COPA cannot restrict this content, and also does not restrict the wide range of harmful-to-minors materials provided noncommercially on the Web, and through non-Web protocols on the Internet such as newsgroups and non-Web chat rooms. Conversely, as defendant's expert conceded, user-based blocking software can effectively block these materials, in addition to blocking Web-based commercial materials. Id. at 492, ¶65.

Statistics image