Complaint in ALA v. Pataki

January 14, 1997

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK


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,
Plaintiffs,

v.

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,
Defendants.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Index No. __________


PRELIMINARY STATEMENT

1. The State of New York has enacted a broad censorship statute that imposes severe restrictions on the availability, display and dissemination of constitutionally protected, non-obscene materials on the Internet by making it a felony to use a computer communication system to disseminate "indecent" material that is "harmful to minors." Section 5 of 1996 N.Y. Laws 600 (codified at N.Y. Penal Law § 235.21(3)) (hereinafter the "Act"). This action seeks to have the Act declared facially unconstitutional and void, and to have the State enjoined from enforcing the Act, by reason of the First, Fifth and Fourteenth Amendments and the Commerce Clause of the United States Constitution.

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2. The Act is similar to the federal Communications Decency Act ("CDA"), Pub. L. No. 104-104, § 502, 110 Stat. 133-139 (1996) (codified at 47 U.S.C. § 223). Both the CDA and the Act attempt to restrict minors from having access to certain types of "indecency," speech that is clearly constitutionally protected among adults. Two separate three-judge federal courts have found the CDA to be unconstitutional because it restricts the communication of protected speech among adults and have entered preliminary injunctions barring enforcement of the federal statute. See Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996), appeal docketed, No. 96-595 (S. Ct. 1996); ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), prob. juris. noted, 65 U.S.L.W. 3414 (S. Ct. Dec. 6, 1996) (No. 96-511). The reasoning of the opinions striking down the CDA render the Act equally unconstitutional.

3. The Act regulates speech on the Internet. The Internet represents the most participatory marketplace of mass speech yet developed -- it is in many ways a far more speech-enhancing medium than radio or television, print, the mails, or even the village green. Literally hundreds of millions of individuals can now engage in interactive communication on a national and global scale via computer networks that are connected to the Internet. With a few simple tools and at a very low cost, the Internet enables average citizens to participate in local or worldwide conversations, publish an online newspaper, distribute an electronic pamphlet, and communicate with a broader audience than ever before possible. The Internet also provides millions of users with access to a vast range of information and resources. Internet users are far from passive listeners -- rather, they are empowered with the tools to seek out exactly the information they need and to respond with their own information if desired.

4. Because of the way the Internet works, the Act's prohibition on certain communications with minors effectively would ban those same communications between adults. The Act targets speech that is constitutionally protected for adults, including, for example, valuable works of literature and art, safer sex information, examples of popular culture, and a wide range of robust human discourse about current issues and personal matters that may include provocative or sexually oriented language. There are no reasonable technological means for users of the Internet to ascertain the age of persons who access their communications, or of restricting or preventing access by minors to certain content. The Act will thus reduce the adult population in cyberspace to reading and communicating only material that is suitable for young children. In addition, because the Act makes no allowance for the varying levels of maturity of minors of different ages, the Act prohibits speech that is valuable and constitutionally protected for older minors, but that may not be appropriate for younger children.

5. The speech at issue in this case does not include obscenity, child pornography, speech used to entice or lure minors into inappropriate activity, harassing speech, or other speech lacking First Amendment protection.

6. Plaintiffs represent a broad range of individuals and entities who are speakers, content providers and access providers on the Internet. Plaintiffs include libraries, booksellers and publishers who provide content on and access to the Internet; Internet service providers who provide access to the Internet; and many individual users of and content providers to World Wide Web sites, chat rooms and discussion groups on the Internet. The Act directly violates the First Amendment rights of plaintiffs, their members and tens of millions of other speakers and users of the Internet.

7. In addition, the Act violates the Commerce Clause because it regulates commerce occurring wholly outside of the State of New York, because it imposes an impermissible burden on interstate and foreign commerce and because it subjects interstate use of the Internet to inconsistent state regulations.

JURISDICTION AND VENUE

8. This case arises under the United States Constitution and the laws of the United States and presents a federal question within this Court's jurisdiction under Article III of the federal Constitution and 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3). This action is brought pursuant to 42 U.S.C. § 1983.

9. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.

10. The Court has the authority to award costs and attorneys' fees under 42 U.S.C. § 1988.

11. Venue is proper in the district under 28 U.S.C. § 1391(b).

THE PARTIES

12. The named plaintiffs are briefly described below. The impact of the Act on the plaintiffs' communications is described more fully in paragraphs <88>-<141>.

13. Plaintiff AMERICAN LIBRARY ASSOCIATION ("ALA"), founded in 1876, is a non-profit, educational organization committed to the preservation of American libraries as resources that are indispensable to the intellectual, cultural, and educational welfare of the nation. The ALA's direct membership includes over 3,000 libraries, more than 55,000 librarians, as well as other entities and individuals.

14. Plaintiff FREEDOM TO READ FOUNDATION, INC. ("FTRF") is a non-profit membership organization established in 1969 by the ALA to promote and defend First Amendment rights; to foster libraries as institutions fulfilling the promise of the First Amendment for every citizen; to support the rights of libraries to include in their collections and make available to the public any work they may legally acquire; and to set legal precedent for the freedom to read on behalf of all citizens. ALA and FTRF sue on their own behalf, on behalf of their members who use online computer communication systems, and on behalf of the patrons of their member libraries.

15. Plaintiff NEW YORK LIBRARY ASSOCIATION ("NYLA") is a nonprofit organization which dedicates itself to advancing the profession of librarianship and information services as well as advancing the use and understanding of libraries. NYLA has approximately 3,000 members, both individuals and institutions, including public, school, academic, and special libraries, and their librarians, trustees, and support staff. NYLA sues on behalf of its members who use computer communication systems and the patrons of their member libraries.

16. Plaintiff WESTCHESTER LIBRARY SYSTEM ("WLS"), a state-chartered and funded, cooperative library system, serves the people of Westchester County, New York through 38 independent member public libraries in Westchester County. All WLS member libraries provide online access to information databases and the World Wide Web. In addition, WLS maintains its own site on the World Wide Web that provides local and regional information, access to the WLS card catalogue and direct links to hundreds of sites on the World Wide Web. WLS sues on its own behalf and on behalf of its member libraries and their patrons.

17. Plaintiff AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION ("ABFFE") was organized as a not-for-profit organization by the American Booksellers Association in 1990 to inform and educate booksellers, other members of the book industry, and the public about the dangers of censorship and to promote and protect the free expression of ideas, particularly freedom in the choice of reading materials. ABFFE, most of whose members are bookstores in the United States, sues on its own behalf, on behalf of its members who use online computer communication systems, and on behalf of the patrons of their member bookstores.

18. Plaintiff ASSOCIATION OF AMERICAN PUBLISHERS, INC. ("AAP") is a national association in the United States of publishers of general books, textbooks, and educational materials. Its approximately 200 members include most of the major commercial book publishers in the United States and many smaller or non-profit publishers, including university presses and scholarly associations. AAP's members publish most of the general, educational, and religious books produced in the United States and are active in all facets of the electronic medium, including publishing a wide range of electronic products and services. AAP sues on its own behalf, on behalf of its members who use online computer communication systems, and on behalf of the readers of its members' books.

19. Plaintiff BIBLIOBYTES, INC. is a company that sells and produces electronic books via a World Wide Web site on the Internet. It is incorporated in New Jersey and its principal place of business is in Hoboken, New Jersey. It sues on its own behalf and on behalf of those who use its online computer communication system.

20. Plaintiff MAGAZINE PUBLISHERS OF AMERICA, INC. ("MPA") is a trade association for the consumer magazine industry. MPA has a membership of approximately 200 companies, representing almost 800 general interest consumer magazines, ranging from journals of literature, to special interest publications, to information providers, to multi-million circulation publications. Most of these magazines, in addition to being published in print form, are now or soon will be published in electronic formats available to the public on the Internet or through online service providers. MPA sues on its own behalf, on behalf of its members who use computer communication systems and on behalf of the readers of its members' publications.

21. Plaintiff INTERACTIVE DIGITAL SOFTWARE ASSOCIATION ("IDSA") is a non-profit trade association. IDSA's 45 members publish over 75% of entertainment software in the United States. Many IDSA members market their software through World Wide Web sites that often include segments of the titles referred to as "demos." Some IDSA members make their titles available online for play. The IDSA sues on behalf of its members who use computer communication systems and on behalf of users of its members' software.

22. Plaintiff PUBLIC ACCESS NETWORKS CORPORATION ("Panix") is an Internet service provider located in New York City. Panix provides access to the Internet to approximately 6,500 individual and business subscribers throughout New York City and the surrounding area. Panix also provides World Wide Web site maintenance, file storage, and server support to organizations that seek to put information on the World Wide Web. In addition to serving as an access provider, Panix provides its own Internet content and assists its customers in presenting content on the Internet; Panix also hosts online discussion groups and chat rooms. Panix sues on its own behalf and on behalf of its subscribers and other users of its services.

23. Plaintiff ECHO is an Internet service provider that offers an online community and bulletin board system for people interested in reading, writing, and conversation. ECHO offers e-mail services and online conferences, and allows subscribers to create their own home pages on the World Wide Web. Founded six years ago in New York City, Echo has over 4,000 subscribers, who come together to share their common passions in over 50 "conferences" -- online discussion groups on topics as diverse as love, media, religion, civil liberties, culture and travel. ECHO sues on its own behalf and on behalf of its subscribers and other users of its services.

24. Plaintiff NEW YORK CITY NET ("NYC Net") is an Internet service provider for the online gay and lesbian community. Launched in 1994, NYC Net has approximately 2,000 subscribers and is the New York City area's leading gay and lesbian online service and Internet service provider, as well as a national virtual community center for the gay and lesbian community. 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. NYC Net sues on its own behalf and on behalf of its subscribers and other users of its services.

25. Plaintiff ART ON THE NET ("art.net") is a not-for-profit international artist site on the World Wide Web. Based in Menlo Park, California, Art on the Net assists over 110 artists in maintaining online studio or gallery spaces. In addition, Art on the Net hosts mailing lists for artistic communities regarding relevant issues and events and posts information about art events and artist shows. Art on the Net sues on its own behalf, on behalf of the artists who utilize its site and on behalf of users of its service.

26. Plaintiff PEACEFIRE is an non-profit organization created (i) to disseminate information about the rights of minors in the context of Internet use and censorship and (ii) to promote equal rights for minors who use the Internet. Peacefire currently has over one hundred members, most of whom are older minors. Peacefire sues on behalf of itself and on behalf of its members who use online computer communication systems.

27. Plaintiff AMERICAN CIVIL LIBERTIES UNION ("ACLU") is a nationwide, nonpartisan organization of nearly 300,000 members dedicated to defending the principles of liberty and equality embodied in the Bill of Rights. The ACLU is incorporated in the District of Columbia and has its principal place of business in New York City. The ACLU sues on its own behalf, on behalf of others who use its online computer communication systems, and on behalf of its members who use online computer communication systems.

28. Defendant GEORGE PATAKI is the Governor of the State of New York. As the Governor, Pataki is vested with the executive power of the State of New York and must take care that the laws of the State of New York are faithfully executed. Pursuant to this executive power, Pataki signed the Act into law on November 1, 1996.

29. Defendant DENNIS VACCO is the Attorney General of the State of New York. As the Attorney General, Vacco has the duty and responsibility for the enforcement of the laws of the State of New York. He also retains general prosecutorial authority to ensure that the laws are faithfully executed.

FACTS

The Internet

30. The Internet is a decentralized, global medium of communications that links people, institutions, corporations and governments around the world. It is a giant computer network that interconnects innumerable smaller groups of linked computer networks and individual computers. While estimates are difficult due to its constant and rapid growth, the Internet is currently believed to connect approximately 9.4 million host computers, 159 countries, and 40 million users. By some estimates, there will be as many as 200 million Internet users by the year 1999.

31. Because the Internet merely links together numerous individual computers and computer networks, no single entity or group of entities controls the material made available on the Internet or limits the ability of others to access such materials. Rather, the range of digital information available to Internet users -- which includes text, images, sound and video -- is individually created, maintained, controlled and located on millions of separate individual computers around the world.

32. The Internet presents extremely low entry barriers to anyone who wishes to provide or distribute information or gain access to it. Unlike television, cable, radio, newspapers, magazines or books, the Internet provides the average citizen with an affordable means for communicating with, accessing and posting content to a worldwide audience.

33. The Internet is an invaluable information source and communication tool which is used by millions of users in innumerable ways. Minors, for example, use the Internet to do school homework, seek information, play games and communicate with others.

34. There are also computer communication systems that are independent of the Internet. For example, computer bulletin board systems ("BBSs") are stand-alone computer systems that allow subscribers to dial directly from their computers into a BBS host computer. BBSs generally offer their users a variety of information services, including e-mail, online discussion groups, and information databases. BBSs generally serve people interested in specialized subject matter or people from a particular geographic region.

How Individuals Access the Internet

35. Individuals have several easy means of gaining access to computer communication systems in general, and to the Internet in particular. Many educational institutions, businesses, and individual communities maintain a computer network linked directly to the Internet and provide account numbers and passwords enabling users to gain access to the network. 

36. Many libraries provide their patrons with free access to the Internet through computers located at the library; some libraries also host online discussion groups and chat rooms. Many libraries also post their card catalogs and online versions of material from their collections.

37. Internet service providers ("ISPs") offer their subscribers modem access to computers or networks linked directly to the Internet. Most ISPs charge a monthly fee, but some provide free or very low-cost access.

38. National "commercial online services," such as America Online, CompuServe, Prodigy, and Microsoft Network, serve as ISPs and also provide subscribers with additional services, including access to extensive content within their own proprietary networks.

39. There are also a growing number of "cyberspace cafes," where customers, for a small hourly fee, can use computers provided by the cafe to access the Internet.

Ways of Exchanging Information on the Internet

40. Most users of the Internet are provided with a username, password and e-mail address that allow them to log on to the Internet and to communicate with other users. Many usernames are pseudonyms or pen names often known as "handles"; these "handles" often provide users with a distinct online identity and help to preserve their anonymity and privacy. The username and e-mail address are the only indicators of the user's identity; that is, persons communicating with the user will only know them by their username and e-mail address (unless the user reveals other information about herself through her messages).

41. Once an individual signs on to the Internet, there are a wide variety of methods for communicating and exchanging information with other users.

E-Mail

42. The simplest and perhaps most widely used method of communication on the Internet is via electronic mail, commonly referred to as "e-mail." Using one of dozens of available "mailers" -- software capable of reading and writing an e-mail -- a user is able to address and transmit via computer a message to a specific individual or group of individuals who have e-mail addresses. 

Discussion Groups, Mailing Lists, and Chat Rooms

43. Another of the most popular forms of communication over computer networks are online discussion groups. Discussion groups allow users of computer networks to post messages onto a public computerized bulletin board and to read and respond to messages posted by others in the discussion group. Discussion groups have been organized on many different computer networks and cover virtually every topic imaginable. Discussion groups can be formed by individuals, institutions or organizations, or by particular computer networks.

44. "USENET" newsgroups are a very popular set of bulletin board discussion groups available on the Internet and other networks. There are currently USENET newsgroups on more than 15,000 different subjects, and over 100,000 new messages are posted to these groups each day.

45. Similarly, users also can communicate within a group by subscribing to automated electronic mailing lists that allow any subscriber to a mailing list to post a particular message that is then automatically distributed to all of the other subscribers on that list. These lists are sometimes called "mail exploders" or "listservs."

46. "Chat rooms" also allow users to engage in simultaneous conversations with another user or group of users by typing messages and reading the messages typed by others participating in the "chat." Chat rooms are available on the Internet, commercial online services, and local BBSs. Although chat rooms are often set up by particular organizations or networks, any individual user can start an online "chat."

47. Online discussion groups, mailing lists, and chat rooms create an entirely new global public forum -- analogous to the village green -- where individuals can associate and communicate with others who have common interests, and engage in discussion or debate on every imaginable topic.

The World Wide Web

48. The World Wide Web ("Web") is the most popular way to provide and retrieve information on the Internet. Anyone with access to the Internet and proper software can create "Web pages" or "home pages" which may contain many different types of digital information -- text, images, sound, and even video. The Web 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 her own Web page, view Web pages posted by others, and then read text, look at images and video, and listen to sounds posted at these sites.

49. The Web was created to serve as a global, online repository of knowledge, containing information from a diverse array of sources, which is easily accessible to Internet users around the world. Though information on the Web is contained on individual computers, each of these computers is connected to the Internet through Web protocols that allow the information on the Web to become part of a single body of knowledge accessible by all Web users.

50. Many large corporations, banks, brokerage houses, newspapers and magazines now provide online editions of their publications and reports on the Web or operate independent Web sites. Many government agencies and courts also use the Web to disseminate information to the public. At the same time, many individual users and small community organizations have established individualized home pages on the Web that provide information of interest to members of the particular organization, communities, and to other individuals.

51. To gain access to the information available on the Web, a person uses a Web "browser" -- software, such as Netscape Navigator, Mosaic, or Internet Explorer -- to display, print and download documents that are formatted in the standard Web formatting language. Each document on the Web has an address that allows users to find and retrieve it.

52. Most Web documents also contain "links." These are short sections of text or image that refer and link to another document. Typically the linked text is blue or underlined when displayed, and when selected by the user on her computer screen, the referenced document is automatically displayed, wherever in the world it actually is stored. Links, for example, are used to lead from overview documents to more detailed documents on the same Web site, for example, from tables of contents to particular pages, and from text to cross-references, footnotes, and other forms of information. For example, plaintiff ALA's Web page provides links to several other Web pages also offered by ALA, including "Libraries Online," "Library Promotional Events," the "ALA Bookstore," and others.

53. Links may also take the user from the original Web site to another Web site on a different computer connected to the Internet. For example, plaintiff BiblioBytes, an online seller of electronic books, has a Web page with a link to another bookseller, Electronic Bookaisle, that sells certain titles not carried by BiblioBytes. 

54. Through the use of these links from one computer to another, from one document to another, the Web for the first time unifies the diverse and voluminous information made available by millions of users on the Internet into a single body of knowledge that can be easily searched and accessed.

55. A number of "search engines" -- such as Yahoo, Magellan, Alta Vista, WebCrawler, and Lycos -- are available free of charge to help users navigate the World Wide Web. Once a user has accessed the search service, she simply types a word or string of words as a search request and the search engine provides a list of sites that match the search string.

56. As can be seen from the various ways that individuals can exchange information and communicate via this new technology, the Internet is "interactive" in ways that distinguish it from traditional media. For instance, users are not passive receivers of information as with television and radio; rather, one can easily respond to the material they receive or view online. In addition, "interactivity" means that Internet users must actively seek out with specificity the information they wish to retrieve and the kinds of communications in which they wish to engage. For example, a user wishing to read articles posted to a newsgroup must log on to the Internet and then connect to a USENET server, select the relevant group, review the relevant header lines -- which provide brief content descriptions -- for each message, and then access a particular message to read its content. Similarly, to gain access to material on the World Wide Web, a user must know and type the address of a relevant site or find the site by typing a relevant search string in one of several available search engines. 

The Range of Content Available on the Internet

57. The information made available on the Internet is as diverse as its users. For example, on the Internet, one can view the full text of the Bible, all of the works of Shakespeare, and numerous other classic works of literature. One can browse through paintings from museums around the world, view in detail images of the ceiling of the Sistine Chapel, or see the latest photographs transmitted by the Jupiter space probe. 

58. Content on the Internet is provided by the millions of Internet users worldwide, and the content ranges from academic writings, to art, to humor, to literature, to medical information, to music, to news, to sexually oriented material. At any one time, the Internet serves as the communication medium for literally tens of thousands of global conversations, political debates, and social dialogues.

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