No. 00-1293 

In the Supreme Court of the United States 

JOHN ASHCROFT, ATTORNEY GENERAL, PETITIONER 

v. 

AMERICAN CIVIL LIBERTIES UNION, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

REPLY BRIEF FOR THE PETITIONER 

THEODORE B. OLSON 

Solicitor General 

Counsel of Record 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

TABLE OF CONTENTS 

Page 

I. COPA’s reliance on community standards does 
not violate the First Amendment .............................. 
2 

A. COPA constitutionally adopts the standards 
of the adult community with respect to what 
is harmful to minors .............................................. 
2 

B. Community standards concerning what is 
harmful to minors are reasonably constant 

across the United States ...................................... 

7 

II. Respondents’ strict scrutiny arguments are 

not ripe for review ........................................................ 

10 

III. COPA satisfies strict scrutiny .................................... 
11 

A. COPA applies to a limited category of 
material ................................................................... 11 

B. COPA places a modest burden on adult 
access to speech ..................................................... 
13 

C. No alternative to COPA would be as 

effective ................................................................... 16 

D. COPA cures the flaws in the CDA ..................... 
18 

TABLE OF AUTHORITIES 

Cases: 

Commonwealth v. American Booksellers Ass’n, 
372 S.E.2d 618 (Va. 1988) ..................................................... 

8 
Ginsberg v. New York, 390 U.S. 629 (1968) ...................... 
11 

Hamling v. United States, 418 U.S. 87 (1974) .................. 
3, 5, 6 

Jenkins v. Georgia, 418 U.S. 153 (1974) ............................ 
3, 4 

Miller v. California, 413 U.S. 15 (1973) ............................ 
3, 4, 5 

Pope v. Illinois, 481 U.S. 497 (1987) ................................... 
8 

Regan v. Time, Inc., 468 U.S. 641 (1984) ........................... 
11, 12 

Reno v. ACLU, 521 U.S. 844 (1997) .......... 6, 8, 11, 17, 19, 20 

(I) 

II 

Cases—Continued: Page 

Sable Communications, Inc. v. FCC, 492 U.S. 115 
(1989) ........................................................................................ 
6, 11 

Smith v. United States, 431 U.S. 291 (1977) ..................... 
5, 9 

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 
(1997) ........................................................................................ 18 

United States v. Playboy Entm’t Group, Inc., 529 

U.S. 803 (2000) ........................................................................ 
11, 17 

Constitution and statutes: 

U.S. Const. Amend. I ............................. 

1, 2, 3, 5, 6, 7, 10, 15, 16 

Child Online Protection Act, Pub. L. No. 105-277, 

Div. C, Tit. XIV, §§ 1403-1404(a), 112 Stat. 2681-736 
to 2681-739 (47 U.S.C. 230-231 (Supp. V 1999)): 
47 U.S.C. 230(d) (Supp. V 1999) ................................... 

17 
47 U.S.C. 231(a)(1) (Supp. V 1999) .................... 
1, 12, 14, 19 

47 U.S.C. 231(b)(4) (Supp. V 1999) .............................. 
12 

47 U.S.C. 231(c)(1) (Supp. V 1999) ............................... 
1, 13 

47 U.S.C. 231(e)(2)(B) (Supp. V 1999) ..................... 
13, 19 

47 U.S.C. 231(e)(6)(B) (Supp. V 1999) ......................... 
19 

47 U.S.C. 231(e)(6)(C) (Supp. V 1999) ......................... 
8, 12 

47 U.S.C. 231(e)(7) (Supp. V 1999) ............................... 
20 

Miscellaneous: 

H.R. Rep. No. 775, 105th Cong., 2d Sess. (1998) ......... 

3, 4, 7, 11, 

17-18, 19, 20 

In the Supreme Court of the United States 

No. 00-1293 

JOHN ASHCROFT, ATTORNEY GENERAL, PETITIONER 

v. 
AMERICAN CIVIL LIBERTIES UNION, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

REPLY BRIEF FOR THE PETITIONER 

The Child Online Protection Act (COPA), 47 U.S.C. 
231(a)(1) and (c)(1) (Supp. V 1999), requires Web businesses 
that regularly make profit-motivated harmful-to-minors 
communications to place such material behind age verifica- 
tion screens. COPA parallels state display laws that require 
local stores to place pornographic material that is harmful to 
minors behind blinder racks, in sealed wrappers, in opaque 
covers, or behind the counter. Courts of appeals and state 
courts have consistently upheld state display laws on the 
ground that they further the government’s compelling 
interest in shielding minors from material that would impair 
their psychological and moral development, without impos- 
ing an unreasonable burden on adults who seek access to 
such material. COPA is constitutional for the same reason. 
Indeed, COPA’s principal effect is merely to require com- 
mercial pornographers who already place much of their 
material behind age verification screens to place their porno- 
graphic teasers behind those screens as well. 

The court of appeals’ judgment invalidating COPA rests 
entirely on its determination that COPA’s reliance on “com- 
munity standards” violates the First Amendment. In fact, 

(1) 

2 

however, COPA’s reliance on the standards of the adult com- 
munity as a whole serves as a valuable First Amendment 
safeguard: It helps to ensure that jurors will assess material 
based on the judgment of an average person, rather than on 
the personal reactions of an individual juror or a particularly 
sensitive person. 

Respondents nonetheless argue (Br. 33-47) that COPA’s 
reliance on community standards violates the First Amend- 
ment. They also argue (Br. 15-33) that COPA fails strict 
scrutiny. Both contentions are without merit. 

I. COPA’S RELIANCE ON COMMUNITY STAN- 
DARDS DOES NOT VIOLATE THE FIRST 
AMENDMENT 

A. COPA Constitutionally Adopts The Standards Of 

The Adult Community With Respect To What Is 
Harmful To Minors 

Respondents contend (Br. 36-39) that because Web con- 
tent cannot be limited to particular geographic areas, COPA 
effectively requires Web businesses to comply with the stan- 
dards of the country’s least tolerant locality. As a result, re- 
spondents argue, COPA requires Web businesses to place 
behind age verification screens material that is not harmful 
to minors in many communities. In fact, Web content can be 
limited to particular geographic areas, albeit at some cost.1 

1 Web businesses can limit their material to particular geographic 
areas by limiting access to members and mailing membership cards to 
specific geographic areas. A new technology also permits a Web business 
to identify a Web visitor’s geographic identity. Gov’t Br. 29 n.3. Contrary 
to respondents’ contention (Br. 36), the government did not stipulate 
otherwise. The government stipulated only that “[o]nce a provider posts 
its content on the Internet and chooses to make it available to all, it gen- 
erally cannot prevent that content from entering any geographic com- 
munity.” 1 C.A. App. 187 (emphasis added). Through the methods dis- 
cussed above, a Web business can “choose” not to “make” its content 
“available to all.” Respondents correctly point out that those methods for 

3 

Even accepting, arguendo, respondent’s factual premise, 
COPA’s reliance on community standards is constitutional. 

1. Contrary to respondents’ assertion (see e.g., Br. 35, 

40), COPA does not call for the application of “local com- 
munity standards.” Nor does COPA require the trier of fact 
to ascertain and apply the standards of the State in which a 
particular locality is situated. Cf. Miller v. California, 413 
U.S. 15 (1973) (upholding California law providing for state- 
wide standards). Instead, COPA requires jurors to assess 
material based on the community standards of the adult 
population as a whole with respect to what is harmful to 
minors, without a particular geographic specification. H. R. 
Rep. No. 775, 105th Cong., 2d Sess. (H. Rep. 775) 28 (1998). 
Under that approach, “[a] juror is entitled to draw on his 
own knowledge of the views of the average person in the 
community or vicinage from which he comes for making the 
required determination, just as he is entitled to draw on his 
knowledge of the propensities of a ‘reasonable’ person in 
other areas of the law.” Hamling v. United States, 418 U.S. 
87, 104-105 (1974). A juror is not directed, however, to apply 
the standards of any “precise geographic area.” Id. at 105. 
Thus, under COPA, “community standards” is intended to 
refer not to the standards of a particular locality, but rather 
to emphasize that whether material appeals to the prurient 
interest and is patently offensive with respect to minors is to 
be judged from the perspective of adults in society at large, 
rather than particularly sensitive (or insensitive) adults. In 
Jenkins v. Georgia, 418 U.S. 153, 157 (1974), the Court held 
that such an instruction complies with the First Amendment. 
The Court explained that “[a] State may choose to define an 
obscenity offense in terms of ‘contemporary community stan- 
dards’ as defined in Miller, without further specification, as 
was done here, or it may choose to define the standards in 

geographic screening are not in the record, but they do not dispute their 
availability. 

4 

more precise geographic terms, as was done by California in 
Miller.” Ibid. Because the application of COPA does not 
turn on local standards, there is no basis for holding COPA 
unconstitutional on its face because of a supposed variation 
in local standards. 

2. Even though COPA does not adopt or focus the jury 
on the standards of a particular locality, it remains possible 
that different juries might reach different conclusions and 
that the situs of the jury (like other variables) could con- 
tribute to that result. But “[t]he mere fact juries may reach 
different conclusions as to the same material does not mean 
that constitutional rights are abridged.” Miller, 413 U.S. at 
26 n.9. 

There are, moreover, additional reasons in the present 
context to reject respondents’ challenge based on speculation 
about the possibility of variation in local standards. First, 
Congress determined when it enacted COPA that community 
standards concerning what is “prurient” and “patently 
offensive” with respect to minors are likely to be “reasonably 
constant” throughout the United States. H. Rep. 775, at 25. 
See pp. 7-9, infra (discussing that determination in greater 
detail). Second, juries should be instructed to take into 
account the fact that the Web is a nationwide medium (see 
Gov’t Br. 39), which should guard against the possibility that 
a particular jury might take too parochial a view of what is 
harmful to minors. 

Respondents contend (Br. 40 n.17) that COPA’s adoption 
of a standard drawn from the adult community as a whole 
without geographic specification—when coupled with an 
instruction that the jury take into account that the Web is a 
nationwide medium—in effect creates a “national standard,” 
which respondents assert is prohibited by Miller. See Br. 
34-35. That contention is erroneous for two reasons. First 
the Miller Court held that “[n]othing in the First Amend- 
ment requires that a jury must consider hypothetical and un- 
ascertainable ‘national standards’ when attempting to deter- 

5 

mine whether certain materials are obscene as a matter of 
fact.” Br. 31-32 (emphasis added). Miller did not hold that 
the use of national standards would violate the First Amend- 
ment. See Hamling, 418 U.S. at 107-110 (affirming convic- 
tion based on jury determination applying national stan- 
dard); Smith v. United States, 431 U.S. 291, 304 n.11 (1977) 
(reserving question whether Congress may mandate a na- 
tional standard). 

Second, COPA calls for the application of community stan- 
dards without geographic specification, local or national. 
COPA therefore does not require a jury to evaluate material 
based on “hypothetical and unascertainable ‘national stan- 
dards.’ ” Miller, 413 U.S. at 31. The suggested jury instruc- 
tion concerning the nature of the Web is not to the contrary; 
it simply instructs the jury, when evaluating material under 
the standards of the adult community with respect to what is 
harmful to minors, to take into account that the particular 
medium on which the material is displayed is national in 
scope. 

3. To the extent that the situs of the jury might have 
some residual effect on the outcome in particular cases, that 
possibility does not render COPA facially unconstitutional. 
Web businesses that regularly display harmful material for 
profit take advantage of a nationwide market for their 
material. It is reasonable to require such businesses to make 
sure that their business activities do not harm minors in the 
areas of the country from which they seek to profit. Web 
businesses can easily satisfy that requirement by placing all 
harmful material behind an age verification screen. 
COPA’s regulation of obscenity on the Web illustrates the 
flaw in respondents’ First Amendment theory. A Web busi- 
ness that makes harmful material available nationwide can 
reasonably be expected to consider the consequences of its 
action. A Web business may not justify displaying material 
that is obscene in one area of the country simply on the 
ground that it would not be found obscene in another. See 

6 

Reno v. ACLU, 521 U.S. 844, 883 (1997) (preserving applica- 
tion of the Communications Decency Act to obscene material 
on the Internet). Similarly, Web businesses do not have a 
First Amendment right to harm minors in some parts of the 
country simply because they are (by hypothesis) not harm- 
ing minors in other parts. 

This Court’s decisions support the constitutionality of ap- 
plying community standards to the Web. In Hamling, 418 
U.S. at 106, the Court held that “[t]he fact that distributors 
of allegedly obscene materials may be subjected to varying 
community standards in the various federal judicial districts 
into which they transmit [their] materials does not render a 
federal statute unconstitutional because of the failure of ap- 
plication of uniform national standards of obscenity.” Like- 
wise, in Sable Communications, Inc. v. FCC, 492 U.S. 115, 
125-126 (1989), the Court held that “[t]here is no consti- 
tutional barrier * * * to prohibiting communications that are 
obscene in some communities under local standards even 
though they are not obscene in others.” 

Respondents contend (Br. 44) that Hamling and Sable are 
distinguishable because “the phone and mail providers in 
those cases could control the distribution of controversial 
material in particular geographic communities.” But Web 
businesses can also control the distribution of their material. 
See note 1, supra. More fundamentally, the holdings in 
Hamling and Sable did not depend on that factor. Hamling 
did not mention geographic control as an element in its 
analysis. Although Sable noted that Sable could control geo- 
graphic distribution of its message at some cost, it held that, 
regardless of that factor, “Sable ultimately bears the burden 
of complying with the prohibition on obscene messages.” 492 
U.S. at 126. Respondents’ effort to distinguish Hamling and 
Sable on factual grounds ignores the controlling legal analy- 
sis in those decisions. In any event, COPA does not call for 
the application of “local” standards as a legal matter, and 
there is no reason to anticipate significant geographic varia- 

7 

tion in the application of COPA as a practical matter. See 
pp., 7-9, infra. 

Acceptance of respondents’ view that community stan- 
dards are unconstitutional as applied to the Web would also 
have an extraordinary consequence. As the court of appeals 
acknowledged, if Congress may not apply community stan- 
dards to the Web, “there may be no other means by which 
harmful material on the Web may be constitutionally re- 
stricted.” Pet. App. 3a. Thus, under respondent’s First 
Amendment theory, even though Congress has a compelling 
interest in preventing harmful material from reaching 
minors, it may be powerless to adopt any effective measure 
to serve that compelling interest. We are not aware of any 
decision of this Court that has invalidated an Act of Con- 
gress that serves a compelling interest when there has been 
no effective alternative for furthering that interest. 

B. Community Standards Concerning What Is Harmful 

To Minors Are Reasonably Constant Across The 
United States 

Respondents contend (Br. 40-44) that there is no evidence 
supporting Congress’s determination that the standards of 
the adult community concerning what is harmful to minors 
are reasonably constant in the country. Congress, however, 
reached a common-sense conclusion based on the kind of 
material that is subject to the requirements of the Act and 
the understanding of the American people possessed by its 
Members elected by the American people. Congress aimed 
COPA primarily at the conduct of commercial pornographers 
that display pornographic teasers to entice viewers to 
purchase other material on the site. H. Rep. 775, at 7, 10. 
Congress had ample reason to conclude that such material 
would be regarded as harmful to minors throughout the 
country. The government exhibits that are lodged with the 
Court (2 C.A. App. 758-812) vividly illustrate the nature of 
that material. Congress did not need to conduct empirical 

8 

studies in order to conclude that adults throughout the 
country would view such material as prurient and patently 
offensive with respect to minors. Respondents do not sug- 
gest that there are places in the country where a different 
conclusion would be reached. 

Respondents instead argue (Br. 43-44) that communities 
have different attitudes about whether sex education, in- 
formation on homosexuality, and books such as The Catcher 
in the Rye are suitable for minors. Communities may well 
differ on those issues. But COPA does not permit such dif- 
ferences to affect coverage under the statute. A crucial fea- 
ture of COPA that respondents fail to address is that it ex- 
pressly excludes from coverage material that, “taken as a 
whole,” has “serious literary, artistic, political, or scientific 
value for minors.” 47 U.S.C. 231(e)(6)(C) (Supp. V 1999). 
Under COPA, the question whether material has serious 
value does not depend on community standards. Reno v. 
ACLU, 521 U.S. at 873; Pope v. Illinois, 481 U.S. 497, 500 
(1987). Instead, the resolution of that issue depends on 
whether the material has serious value for a “legitimate 
minority” of older minors. Commonwealth v. American 
Booksellers Ass’n, 372 S.E.2d 618, 624 (Va. 1988). For more 
than a decade, courts have enforced that legal limitation to 
exclude from state display laws books on sex education and 
controversial works such as The Catcher in the Rye. 

Ibid. 

(The Facts Of Love and The New Our Bodies Ourselves not 
covered by state display law despite graphic drawings of hu- 
man anatomy and explicit yet informative discussions of 
sexual acts). Such material is similarly excluded as a matter 
of law from COPA. Thus, respondents’ surveys do not 
undermine Congress’s judgment that, with respect to the 
material to which COPA is addressed, community standards 
are “reasonably constant.” 

Respondents’ reliance (Br. 42-43) on differences in state 
harmful-to-minors laws is also unpersuasive. As respon- 
dents note (Br. 42), some States prohibit only distribution of 

9 

material that is harmful to minors, while many others pro- 
hibit public display of such material as well. But that simply 
reflects a difference in enforcement strategies; it does not 
reflect any significant underlying difference in the category 
of material that communities throughout the country regard 
as prurient and patently offensive with respect to minors. 

Respondents also note (Br. 42) that some States prohibit 
nudity that is patently offensive, while others prohibit speci- 
fically defined sexual content. Those definitions, however, 
may simply amount to different ways of describing the same 
basic content. In any event, as this Court has explained, the 
definitions of covered material in state law prohibitions are 
not necessarily embodiments of community standards; often 
they reflect only a State’s enforcement priorities. Smith, 431 
U.S. at 302-303, 306. The state law differences identified by 
respondents therefore do not affect the validity of Con- 
gress’s judgment that community standards are reasonably 
constant throughout the Nation concerning what is prurient 
and patently offensive with respect to minors. 

A review of respondents’ sample exhibits (Br. 18-19) pro- 
vides further support for Congress’s judgment. Most of 
those exhibits are excluded from coverage as a matter of law 
by one or more of the three prongs of the harmful-to-minors 
standard. One of those exhibits contains photographs of ab- 
normal sexual acts, 2 C.A. App. 710-713, and two others con- 
tain titillating and graphic first-person accounts of sexual 
experiences. Id. at 617-620, 745-748. If regularly displayed 
on the Web for profit, those exhibits would likely not be 
excluded from coverage as a matter of law. But there is no 
reason to believe that those exhibits would be viewed as 
appealing to prurient interest and patently offensive with 
respect to minors in some communities but not in others. 
Indeed, respondents’ brief does not identify a single exhibit 
as to which coverage under COPA would depend on which 
community in the country evaluated the material. 

10 

II. RESPONDENTS’ STRICT SCRUTINY ARGU- 
MENTS ARE NOT RIPE FOR REVIEW 

Respondents also contend (Br. 15-33) that COPA fails 
strict scrutiny. That issue is not ripe for review. The court 
of appeals based its judgment invalidating COPA entirely on 
its view that COPA’s reliance on community standards vio- 
lates the First Amendment. Pet. App. 21a. That court did 
not address whether COPA otherwise satisfies strict 
scrutiny. Id. at 21a n.19. The government’s certiorari peti- 
tion in this case similarly raised only the question whether 
COPA’s reliance on community standards violates the First 
Amendment. Pet. I. 

Unlike the court of appeals, the district court did address 
whether COPA satisfies strict scrutiny. But because pro- 
ceedings in the district court were directed to respondents’ 
request for a preliminary injunction, the court did so in a 
preliminary way. The district court characterized its find- 
ings as “provisional,” Pet. App. 55a n.4, and it expressed its 
conclusions in tentative and highly qualified terms, id. at 53a 
(respondents’ interpretation of COPA’s coverage “is not un- 
reasonable”); id. at 89a (adult verification screens “may 
deter users from accessing such materials” and “the loss of 
users of such material may affect the speakers’ economic 
ability to provide such communications”) (emphasis added); 
id. at 94a (blocking software “may be at least as successful 
as COPA would be in restricting minors’ access to harmful 
material online”) (emphasis added). 

Because the court of appeals did not address whether 
COPA satisfies strict scrutiny, and the district court did so 
only in a preliminary way, that issue is not ripe for resolution 
by this Court. This Court should therefore reverse the court 
of appeals’ judgment holding that COPA’s reliance on com- 
munity standards violates the First Amendment and remand 
for further proceedings on whether COPA satisfies strict 
scrutiny. 

11 

III. COPA SATISFIES STRICT SCRUTINY 

Should the Court choose to address the issue, it should 
hold that COPA satisfies strict scrutiny. A law satisfies 
strict scrutiny if it is “narrowly tailored to promote a com- 
pelling Government interest.” United States v. Playboy 
Entm’t Group, Inc., 529 U.S. 803, 813 (2000). COPA satisfies 
both prongs of that inquiry. This Court has repeatedly held 
that the government has a compelling interest in shielding 
minors from sexually explicit material that is harmful to 
them, even if it is not obscene by adult standards. Reno v. 
ACLU, 521 U.S. at 869; Sable, 492 U.S. at 126; Ginsberg v. 
New York, 390 U.S. 629, 639-640 (1968). Unlike the CDA in- 
validated in Reno v. ACLU, COPA is narrowly tailored to 
achieve that objective. See pp. 18-20, infra (discussing how 
COPA cures the specific problems with narrow tailoring that 
required invalidation of the CDA). 

Respondents nevertheless argue that COPA is not nar- 
rowly tailored to achieve the government’s compelling in- 
terest in protecting minors from material that is harmful to 
them. That argument is unpersuasive.2 

A. COPA Applies To A Limited Category Of Material 

Respondents first contend (Br. 13-14, 17-21) that “the 
volume and breadth of protected speech targeted by 
COPA—like the CDA—is staggering.” In order to support 
that contention, respondents follow “the current fashion in 
First Amendment litigation.” Regan v. Time, Inc., 468 U.S. 
641, 693 (1984) (opinion of Stevens, J., concurring in the 

2 Although respondents do not dispute that the government has a 
compelling interest in protecting minors from the material covered by 
COPA, they assert (Br. 30) that the government did not “prove” that such 
material harms minors. This Court has repeatedly recognized, however, 
that exposure to such material harms the psychological and moral deve- 
lopment of minors, Reno v. ACLU, 521 U.S. at 869; Sable, 492 U.S. at 126; 
Ginsberg, 390 U.S. at 639-640, and the record before Congress contains 
ample evidence confirming that conclusion. See H. Rep. 775, at 11. Fur- 
ther proof is not required. 

12 

judgment in part and dissenting in part). Instead of urging 
the Court to construe COPA narrowly in order to avoid 
serious constitutional questions, they urge the Court “to 
adopt the most confusing and constitutionally questionable 
interpretation of the statute that it could.” Ibid. Indeed, re- 
spondents ignore key statutory language that sharply limits 
the scope of COPA’s coverage, and thereby eliminates the 
very concerns respondents raise. 

Respondents argue (Br. 18) that COPA covers material 
that conveys information about birth control, sexually trans- 
mitted diseases, sexual health, date rape, and homosexuality. 
Such material, however, has serious value for a legitimate 
minority of older minors. It is therefore excluded from 
COPA’s coverage as a matter of law. See p. 8, supra. In 
arguing that COPA targets such material, respondents 
pointedly fail to discuss the serious value prong of the 
statute. See 47 U.S.C. 231(e)(6)(C) (Supp. V 1999). 

Respondents similarly err in asserting (Br. 19) that COPA 
applies to the millions of communications in chat rooms and 
on bulletin boards on the Web. In fact, COPA applies only to 
those who regularly “make[]” harmful communications “for 
commercial purposes,” 47 U.S.C. 231(a)(1) (Supp. V 1999), 
and a person “shall not be considered to make any 
communication for commercial purposes to the extent that 
such person is * * * engaged in the * * * hosting * * * 
of a communication made by another person, without selec- 
tion or alteration of the content of the communication.” 47 
U.S.C. 231(b)(4) (Supp. V 1999). Those who merely “host” 
chat rooms and bulletin boards and do not “select” or “alter” 
the content of communications are therefore excluded from 
COPA’s coverage. The persons who actually make harmful 
communications in chat rooms also are not covered, except in 
the unusual circumstance where they do so “for commercial 
purposes.” 

Equally without merit is respondents’ contention (Br. 21) 
that a Web business is liable under COPA if it makes a single 

13 

harmful communication. COPA’s obligations apply only to a 
person who makes harmful communications in the “regular 
course of such person’s trade or business.” 47 U.S.C. 
231(e)(2)(B) (Supp. V 1999) (emphasis added). COPA there- 
fore does not apply to those who make an isolated harmful 
communication. 

Once COPA’s textual limitations are taken into account, it 
is evident that the statute applies primarily to commercial 
pornographers, just as Congress intended. If COPA applies 
to a staggering amount of protected speech, it is only be- 
cause there is a staggering amount of commercial porno- 
graphy on the Web. 

B. COPA Places A Modest Burden On Adult Access To 

Speech 

Respondents also contend (Br. 15-16) that COPA requires 
Web sites to “deny” adults access to speech they have a 
constitutional right to receive. COPA, however, contains no 
such requirement. Instead, it simply requires Web sites that 
regularly display harmful material for profit to place that 
material behind an age verification screen. 47 U.S.C. 
231(c)(1) (Supp. V 1999). 

Respondents argue (Br. 21-30) that adult verification re- 
quirements impose unacceptable burdens on adult access to 
protected speech. That argument fails to take into account 
the modest burdens associated with Adult IDs. At the time 
of trial, one adult identification service—Adult Check— 
would set up an age verification service at no cost to the 
Web site, and adults could purchase an Adult ID for $16.95 
per year. Pet. App. 75a-76a. 

Respondents argue (Br. 24-26) that Adult IDs impose an 
unacceptable burden because adults must give identifying 
information to a third party in order to obtain them, deter- 
ring some adults who want to maintain their privacy. They 
also express concerns (Br. 26) about the costs of Adult IDs. 
Respondents vastly overstate the significance of those bur- 

14 

dens. At the time of trial, approximately three million 
people had a valid Adult Check ID. Pet. App. 76a. In light 
of the substantial and apparently growing use of Adult IDs, 
the reluctance of “some” to obtain them, id at 81a, does not 
render COPA unconstitutional. 

Respondents’ other objections to Adult IDs are even less 
persuasive. For example, respondents claim (Br. 23-24) that 
an Adult ID requirement would deny access to all adults 
without credit cards. The district court specifically found, 
however, that individuals who do not have credit cards can 
easily obtain an Adult ID by mailing a check and a copy of a 
driver’s licence or passport to an adult verification service. 
Pet. App. 76a.3 

Respondents contend (Br. 26-27) that users “offended by 
certain content” can “drive up” a Web site’s costs “by re- 
peatedly accessing restricted content.” To the extent that 
problem is anything other than theoretical, however, it 
exists only when a Web site requires a viewer to use a credit 
card number to obtain access to screened content. Pet. App. 
73a-74a. A Web site that requires a viewer to gain access 
with an Adult ID could not experience that problem because 
repeated use of an Adult ID does not impose costs on a Web 
operator. Ibid. 

Respondents also claim (Br. 27) that the district court 
found that the costs of redesigning a Web site and segre- 
gating harmful from non-harmful content could be “prohibi- 

3 Respondents are incorrect in asserting (Br. 24) that, in order to host 
chat rooms, Web sites would have to place both harmful and non-harmful 
material behind an age verification screen. It is true that there is no way 
to prevent minors from obtaining access to harmful content in a chat room 
without also placing non-harmful content in that chat room behind an age 
verification screen. Pet. App. 90a. But COPA does not require Web sites 
that host chat rooms to place either harmful or non-harmful content be- 
hind an age verification screen. As already discussed, (see p. 12, supra), 
COPA excludes from coverage those who merely host chat rooms. See 47 
U.S.C. 231(a)(1) (Supp. V 1999). 

15 

tively expensive.” The court made no such finding. Instead, 
the court found only that the extent of such costs would 
depend on a number of factors, Pet. App. 78a, that the cost of 
segregating new content was likely to be less expensive than 
the start-up costs, ibid., and that Web sites that rely on 
advertising revenues may already have to segregate sexual 
content in order to meet the requirements of certain 
advertisers, id. at 57a. The court noted as well that re- 
spondents’ expert did not view out-of-pocket costs as the 
real economic burden on content providers, id. at 80a, and 
that the government’s financial planning expert concluded 
that compliance with COPA would not impose unreasonable 
out-of-pocket costs. Id. at 80a-81a. 

COPA’s adult screening requirement therefore effectively 
meets Congress’s dual objectives: It prevents minors from 
obtaining access to harmful material without unduly burden- 
ing adult access to such material. Respondents apparently 
believe, however, that Congress may further its compelling 
interest in protecting minors from harmful material only if it 
can do so without imposing any burden, however modest, on 
adult access to speech. If that conception of the First 
Amendment were accurate, this Court could not have upheld 
the prohibition on sale of harmful material to minors at issue 
in Ginsberg. In order to enforce prohibitions on sale of 
harmful material to minors, local stores may ask some cus- 
tomers for a driver’s license as proof of age. Under re- 
spondents’ theory, that would impose an impermissible bur- 
den on adults who do not want to give out identifying infor- 
mation to a third party. 

Respondents’ First Amendment theory would also invali- 
date state display laws. Those laws impose some burden on 
adults who seek access to material that is harmful to minors. 
Some adults may steer clear of blinder racks for fear of 
public embarrassment; others may be disinclined to purchase 
magazines in sealed wrappers because they cannot peruse 
them first. Stores displaying harmful-to-minors material 

16 

had to incur the start-up costs of segregating such material, 
and they continue to incur the ongoing costs of segregating 
new material. And to the extent these costs are passed on to 
adult customers, the display laws impose a financial burden 
on those customers as well. 

Respondents do not deny that their First Amendment 
theory would invalidate state display laws. Instead, they 
point out (Br. 46) that this Court has never upheld the 
constitutionality of display laws, and that some courts have 
expressed the view that they raise serious constitutional 
questions. Courts of appeals and state courts of highest 
resort, however, have consistently upheld state display laws 
on the ground that such laws further the government’s 
compelling interest in protecting minors from harmful 
material without imposing an undue burden on adult access 
to protected speech. Gov’t Br. 24-25, 42-43 & n.5 (collecting 
cases). COPA is constitutional for the same reason.4 

C. No Alternative To COPA Would Be As Effective 

Respondents contend (Br. 30-33) that COPA’s screening 
requirement is not narrowly tailored because the use of 
blocking software by parents is less restrictive and at least 
as effective. As applied to commercial Web sites in the 
United States that regularly display harmful material, how- 
ever, COPA’s screening requirement is far more effective. 
COPA compels Web publishers to take steps to prevent 
minors from obtaining access to material that is harmful to 
them. Under respondents’ alternative, no entity is required 
to install filtering software. Blocking software also has 
several additional built-in limitations. It both blocks certain 
material that is not harmful to minors and fails to screen out 
certain material that is harmful to minors. Pet. App. 94a. It 
can be defeated by a computer-savvy minor. Id. at 82a. It 

4 Respondents rely (Br. 16-17) on several cases holding that the gov- 
ernment may not limit adults to material that is suitable for minors. 
Because COPA does not have that effect, those cases are inapposite. 

17 

can be expensive for parents to purchase. H. Rep. No. 775, 
at 19. And it must be updated periodically at an additional 
cost. Id. at 20. COPA’s screening requirement does not 
suffer from those built-in deficiencies.5 

As respondents note (Br. 30), COPA’s screening require- 
ment will not protect minors from all sources of harmful 
material. It does not apply to non-Web protocols on the 
Internet and non-commercial Web sites, and its application 
to foreign Web sites is problematic. Congress reasonably 
concluded, however, that domestic commercial Web busi- 
nesses display an enormous quantity of material that is 
harmful to minors. H. Rep. No. 775, at 7. Congress was 
entitled to address that serious problem with the most effec- 
tive means available. 

Congress also did not ignore the dangers posed by other 
sources of harmful material. As to those sources, it con- 
cluded that blocking software constitutes the most practical 
solution currently available. The reason is that non-Web 
protocols lack the technology for age screening; enforcement 
of a screening requirement against foreign Web sites would 
create serious enforcement difficulties; and Reno v. ACLU, 
521 U.S. at 876-877 raised questions about the constitutional- 
ity of imposing compliance costs on non-commercial Web 
sites. In contrast, despite its limitations, blocking software 
can be used to address each of those sources of harmful 
material to some extent. For that reason, in a separate pro- 
vision in COPA, Congress directed Internet service pro- 
viders to notify customers of the availability of blocking soft- 
ware. 47 U.S.C. 230(d) (Supp. V 1999); see also H. Rep. No. 

5 Respondents’ reliance (Br. 32-33) on Playboy is misplaced. There, 
the alternative identified by the Court required cable operators to block 
undesired channels upon the request of the subscriber, at no cost to the 
subscriber. 529 U.S. at 803-804. Moreover, once the operator blocked the 
channel, it would entirely eliminate the problem of signal bleed without 
affecting content on other channels. Respondents’ alternative does not 
share any of the those features. 

18 

775, at 19 (noting that blocking software may be effective for 
many parents). 

COPA’s screening requirement and the use of blocking 
software by parents are thus not mutually exclusive alterna- 
tives. Both can work together to prevent minors from being 
exposed to harmful material, and Congress envisioned that 
they would. COPA’s screening requirement applies where it 
is far more effective, and blocking software is available to 
address the sources of harmful material that COPA’s screen- 
ing requirement cannot. In those circumstances, any debate 
about which is more effective operating alone is beside the 
point. The relevant question is whether Congress’s entire 
scheme—which envisions COPA’s screening requirement 
and blocking software operating together—is significantly 
more effective in preventing access to harmful material than 
the use of blocking software alone. Because the two to- 
gether are significantly more effective in protecting minors 
from harmful material than blocking software alone, re- 
spondents’ blocking-only alternative is not nearly as effec- 
tive as the scheme that Congress enacted.6 

D. COPA Cures The Flaws In The CDA 

Finally, respondents argue (Br. 12-15) that there is no 
relevant distinction between COPA and the CDA. But Con- 
gress carefully considered the concerns about narrow tailor- 
ing that this Court identified in Reno v. ACLU and success- 
fully addressed them. 

6 The district court’s tentative and highly qualified conclusion that 
blocking software “may be at least as successful as COPA would be in re- 
stricting minors’ access to harmful material” (Pet. App. 94a) addresses the 
wrong question. The critical points are that COPA’s screening require- 
ment is far more effective where it applies, and that, as applied to all 
sources of harmful content on the Internet, COPA’s screening require- 
ment and blocking software are together far more effective than blocking 
software operating alone. At the very least, “substantial evidence” 
supports Congress’s determination on that issue. Turner Broad. Sys., Inc. 

v. FCC, 520 U.S. 180, 195-196 (1997). 

19 

First, the CDA applied to non-Web Internet communi- 
cations where age screening was not feasible. Reno v. 
ACLU, 521 U.S. at 851, 876-877. In contrast, COPA applies 
only to Web communications, 47 U.S.C. 231(a)(1) (Supp. V 
1999), where age screening is feasible. H. Rep. No. 775, at 
13-14. Second, the CDA applied to communications made for 
non-commercial purposes and therefore included large 
categories of speakers who could not easily afford the costs 
of age screening. 521 U.S. at 856, 877. In contrast, COPA 
applies only to Web businesses that regularly make harmful 
communications on the Web for profit, 47 U.S.C. 231(a)(1) 
and 231(e)(2)(B) (Supp. V 1999)—a group that can readily 
afford the costs of compliance. H. Rep. No. 775, at 13-15. 

Third, because the CDA applied to materials that were 
“indecent” or “patently offensive,” without defining either 
term and without making clear whether the “indecent” and 
“patently offensive” determinations should be made with re- 
spect to adults or minors, it raised serious vagueness con- 
cerns. Reno v. ACLU, 521 U.S. at 870-874, 877. In contrast, 
COPA identifies the particular sexual activities and anato- 
mical features depiction of which may be found to be 
“patently offensive,” and makes clear that the determination 
whether material containing such depictions is “patently 
offensive” shall be made “with respect to minors.” 47 U.S.C. 
231(a)(1) and (e)(6)(B) (Supp. V 1999). Fourth, because the 
CDA did not require that the covered material “appeal to 
the prurient interest” or lack “serious educational or other 
value,” it covered vast amounts of non-pornographic materi- 
als having serious value. 521 U.S. at 873, 877-878. In 
contrast, COPA contains all three prongs of the Ginsberg 
test, and therefore applies to the kind of pornographic 
material that has been behind blinder racks and in sealed 
wrappers for more than a decade. 

Fifth, the CDA made it unlawful for parents to permit 
their children to use the family computer to view covered 
material. Reno v. ACLU, 521 U.S. at 865, 878. In contrast, 

20 

COPA contains no such intrusion on the parent-child re- 
lationship. H. Rep. 775, at 15. Sixth, the CDA defined a 
minor as any person under 18 years of age, thereby including 
some persons in their first year of college. 521 U.S. at 865- 
866, 878. In contrast, COPA defines “minor” as “any person 
under 17 years of age,” 47 U.S.C. 231(e)(7) (Supp. V 1999), 
thereby allowing more mature minors to have access to the 
material at issue. 

Respondents argue (Br. 13) that none of those differences 
is “constitutionally significant.” That argument ignores this 
Court’s decision in Reno v. ACLU. In explaining why the 
CDA failed strict scrutiny, the Court relied upon each of the 
factors noted above. 521 U.S. at 865-866, 870-874, 877-879. 
Congress responded directly to the Court’s decision in Reno 

v. ACLU by tailoring COPA in a manner that addresses the 
very concerns that the Court identified. 

* * * * * 

For the foregoing reasons, as well as those stated in the 
government’s opening brief, the court of appeals’ judgment 
should be reversed, and the case should be remanded to that 
court for further proceedings. 

Respectfully submitted. 

THEODORE B. OLSON 

Solicitor General 

OCTOBER 2001