No. 00-1293 

In the Supreme Court of 
the United States 

JOHN ASHCROFT, ATTORNEY GENERAL OF THE 
UNITED STATES, 
Petitioner, 

V. 

AMERICAN CIVIL LIBERTIES UNION, ET AL., 

Respondents. 

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

RESPONDENTS’ BRIEF IN OPPOSITION 

ALEXANDRA A.E. SHAPIRO 
CHRISTOPHER R. HARRIS 
MICHELE M. PYLE 
MARK H. GOLDBERG 
LATHAM & WATKINS 
885 Third Avenue 
New York, N.Y. 10022 
(212) 906-1200 
Of Counsel to American Civil 
Liberties Union Foundation 
ANN E. BEESON* 
CHRISTOPHER A. HANSEN 
STEVEN R. SHAPIRO 
AMERICAN CIVIL LIBERTIES 

UNION FOUNDATION 
125 Broad Street, 18th Floor 
New York, N.Y. 10004 
(212) 549-2500 

DAVID L. SOBEL 
ELECTRONIC PRIVACY 

INFORMATION CENTER 
1718 Connecticut Ave. NW 
Washington, D.C. 20009 
(202) 483-1140 
Counsel for Respondents 

*Counsel of Record 

(Other counsel listed on inside 
cover) 

LEE TIEN 
ELECTRONIC FRONTIER 

FOUNDATION 
454 Shotwell Street 
San Francisco, CA 94110 
(415) 436-9333 
Counsel for Respondents 

i 

QUESTION PRESENTED 

Whether the court of appeals correctly held that the criminal 
provisions of a federal law, the Child Online Protection Act, 47 
U.S.C. § 231, violate the First Amendment by suppressing a 
large amount of speech on the World Wide Web that adults are 
entitled to communicate and receive. 

ii 

PARTIES TO THE PROCEEDING 

The petitioner in this case is John Ashcroft, Attorney 
General of the United States. The respondents are 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.; and West Stock, Inc., now known as 
ImageState North America, Inc. 

iii 

CORPORATE DISCLOSURE STATEMENT 

In accordance with United States Supreme Court Rule 29.6, 
respondents make the following disclosures: 

1) The parent corporation of respondent ArtNet Worldwide 
Corporation is ArtNet AG. 

2) Approximately 30% of the stock of respondent 
OBGYN.net is owned by MediOne, Inc., an affiliate of Medison 
Co., Ltd. 

3) The parent corporation of respondent Philadelphia Gay 
News is Masco Communications. 

4) Approximately 17% of the total number of shares issued 
and outstanding, including warrants and options, of respondent 
PlanetOut Corporation is owned by AOL Time Warner Inc. 

5) The parent corporation of respondent West Stock, Inc., 
which has been renamed ImageState North America, Inc., is 
Convergence Holdings, PLC. 

6) The following respondents do not have parent 
companies nor do any publicly held companies own ten percent 
or more of their stock: Addazi Inc. d/b/a Condomania, 
American Booksellers Foundation for Free Expression, 
American Civil Liberties Union, Androgyny Books, Inc. d/b/a A 
Different Light Book Stores, Blackstripe, Electronic Frontier 
Foundation, Electronic Privacy Information Center, Free Speech 
Media, Internet Content Coalition, Powell’s Bookstore, RiotGrrl, 
and Salon Internet, Inc. 

iv 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTED.........................................................i 

PARTIES TO THE PROCEEDING...........................................ii 

CORPORATE DISCLOSURE STATEMENT...........................iii 

TABLE OF CONTENTS..........................................................iv 

TABLE OF AUTHORITIES.....................................................vi 

STATEMENT OF THE CASE..................................................1 

A. The District Court’s Decision And Factual 

Findings...................................................................1 

1. Respondents And Their Speech 
Affected By COPA.......................................3 

2. The Impact Of COPA On 
Communication On The Web.......................4 

3. User-Based Filtering Programs.....................7 

B. The Court Of Appeals’ Ruling.................................7 

SUMMARY OF THE ARGUMENT..........................................8 

REASONS FOR DENYING THE WRIT....................................9 

I. BECAUSE COPA CONTAINS THE SAME 
DEFECTS AS THE CDA, WHICH THIS COURT 
HAS ALREADY FOUND 
UNCONSTITUTIONAL, THIS CASE DOES NOT 
MERIT REVIEW.............................................................9 

A. COPA Contains The Same Defects That 

Caused This Court To Hold That The CDA 
Was Unconstitutional................................................9 

B. None Of The Alleged Differences Between 

COPA And The CDA Raise Any Novel Issues 

v 

Warranting This Court’s Review.............................11 

II. EVEN IF THIS COURT HAD NOT ALREADY 
RULED THAT AN ESSENTIALLY IDENTICAL 
STATUTE IS UNCONSTITUTIONAL, REVIEW 
WOULD BE UNNECESSARY BECAUSE COPA 
IS CLEARLY OVERBROAD.........................................13 

A. The Inability To Verify Age On The Web 

Renders COPA Overbroad......................................13 

B. COPA’s Affirmative Defenses Do Not Save 

The Statute, Because They Will Prevent Or 
Deter Adult Web Users From Accessing A 
Wide Range Of Protected Speech............................14 

C. COPA Is Not Narrowly Tailored To Advance 

The Government’s Asserted Interest.......................16 

III. REVIEW IS ALSO UNNECESSARY BECAUSE 
THE COURT OF APPEALS CORRECTLY HELD 
THAT COPA UNCON-STITUTIONALLY 
REQUIRES SPEAKERS ON THE WEB TO 
ABIDE BY THE STANDARDS OF THE MOST 
RESTRICTIVE COMMUNITY OR RISK 
CRIMINAL PROSECUTION.........................................19 

A. The Court Of Appeals’ Reasoning Is Correct 

Under Miller And Its Progeny................................19 

B. The Third Circuit’s Reasoning Is Fully 

Consistent With Hamling And Sable.......................23 

CONCLUSION.......................................................................24 

vi 

TABLE OF AUTHORITIES 

CASES Page(s) 

A Book Named ‘John Cleland’s Memoirs of a 

Woman of Pleasure’ v. Massachusetts, 
383 U.S. 413 (1966).................................................21 

American Civil Liberties Union v. Johnson, 
194 F.3d 1149 (10th Cir. 1999)..........................22, 24 

American Library Ass’n v. Pataki, 
969 F. Supp. 160 (S.D.N.Y. 1997).................22, 24, 25 

Bolger v. Youngs Drug Prods. Corp., 
463 U.S. 60 (1983)...................................................14 

Butler v. Michigan, 
352 U.S. 380 (1957).................................................14 

Central Hudson Gas & Elec. Corp. v. Public 

Serv. Comm’n, 
447 U.S. 557 (1980).................................................17 

Cyberspace Communications, Inc. v. Engler, 

No. 99-2064, 2000 WL 1769592 (6th 
Cir. Nov. 15, 2000), aff’g, 55 F. Supp. 
2d 737 (E.D. Mich. 1999)..................................22, 24 

Denver Area Educ. Telecomms. Consortium, 

Inc. v. FCC, 
518 U.S. 727 (1996)...........................................15, 19 

Erznoznik v. City of Jacksonville, 
422 U.S. 205 (1975)...........................................14, 17 

vii 

Ginsberg v. New York, 
390 U.S. 629 (1968).................................................12 

Hamling v. United States, 
418 U.S. 87 (1974).............................................24, 25 

Landmark Communications, Inc. v. Virginia, 
435 U.S. 829 (1978).................................................25 

Miller v. California, 
413 U.S. 15 (1973).............................................passim 

New York Times v. Sullivan, 
376 U.S. 254 (1964).................................................13 

PSINet v. Chapman, 
108 F. Supp. 2d 611 (W.D. Va. 2000)................22, 24 

R.A.V. v. City of St. Paul, 
505 U.S. 377 (1992).................................................10 

Reno v. American Civil Liberties Union, 
521 U.S. 844 (1997), aff’g, 929 F. 
Supp. 824 (E.D. Pa. 1996)..................................passim 

Sable Communications, Inc. v. FCC, 
492 U.S. 115 (1989)..........................11, 12, 14, 24, 25 

Simon & Schuster, Inc. v. Members of the N.Y. 

State Crime Victims Bd., 
502 U.S. 105 (1991).................................................17 

Southeastern Promotions, Ltd. v. Conrad, 
420 U.S. 546 (1970).................................................25 

viii 

United States v. Playboy Entertainment 

Group, Inc., 
529 U.S. 803 (2000)......................................15, 19, 25 

Virginia v. American Booksellers Ass’n, 
484 U.S. 383 (1988).................................................21 

STATUTES 

Child Online Protection Act, 
47 U.S.C. § 231..................................................passim 

47 U.S.C. § 230........................................................19 

Communications Decency Act of 1996, 
47 U.S.C. § 223..................................................passim 

LEGISLATIVE MATERIAL 

H.R. Rep. No. 105-775 (1998).............................................23 

In the Supreme Court of 
the United States 

NO. 00-1293 

JOHN ASHCROFT, ATTORNEY GENERAL OF THE 
UNITED STATES, 
Petitioner, 

V. 

AMERICAN CIVIL LIBERTIES UNION, ET AL., 

Respondents. 

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

RESPONDENTS’ BRIEF IN OPPOSITION 

Pursuant to United States Supreme Court Rule 15, the 
respondents American Civil Liberties Union, et al., hereby 
submit this brief in opposition to the petition for a writ of 
certiorari. 

STATEMENT OF THE CASE 

The Child Online Protection Act (“COPA”), 47 U.S.C. 
§ 231, was signed into law on October 21, 1998. The next day, 
respondents filed this suit in the United States District Court for 
the Eastern District of Pennsylvania, alleging, inter alia, that 
COPA violated the First Amendment to the Constitution. 
Respondents sought an injunction to prevent its enforcement. 

A. The District Court’s Decision And Factual 

Findings 

On February 1, 1999, following an evidentiary hearing, the 
district court preliminarily enjoined enforcement of COPA, 

2 

which imposes severe criminal and civil sanctions on persons 
who “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. § 231(a)(1)-(3). The district court’s 
decision was supported by detailed findings of fact based on six 
days of testimony, numerous affidavits and extensive 
documentary evidence submitted by both sides. The findings 
describe the character and the dimensions of the Internet, the 
nature of the speech at risk under the law, the inability to verify 
the age and geographic location of Internet users and the effect 
of the law on speakers and adult readers. The majority of 
factual findings and conclusions mirror those found in Reno v. 
American Civil Liberties Union, 521 U.S. 844 (1997) (“ACLU 
I”), in which this Court struck down the very similar 
Communications Decency Act (the “CDA”), 47 U.S.C. § 223, 
and held that “it would be prohibitively expensive for . . . some 
commercial[] speakers who have Web sites to verify that their 
users are adults. These limitations must inevitably curtail a 
significant amount of adult communication on the Internet.” 
Id. at 877 (citation omitted); see also Appendix to Petition for a 
Writ of Certiorari (“App.”) 80a, 81a, 89a. Petitioner has not 
disputed the district court’s findings either on appeal or in this 
petition, and some of those findings were derived from a joint 
stipulation submitted by the parties. See App. 55a-82a. Based 
on this record, the district court held that respondents were 
likely to succeed on their claim that COPA violates the First 
Amendment because “COPA imposes a burden on speech that 
is protected for adults,” App. 90a, and because the government 
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,” App. 93a. 

3 

1. Respondents And Their Speech 
Affected By COPA 

Respondents include a diverse range of individuals, entities, 
and organizations, ranging from “new media” online 
magazines to long-established booksellers and large media 
companies. All respondents use the World Wide Web (the 
“Web”) to provide information on a variety of subjects, 
including sexually oriented issues that they fear could be 
construed as “harmful to minors.” 
See App. 63a-67a, ¶¶ 21, 

24-26. 

Respondents and their users post, read and respond to 
content on the Web including visual art and poetry; information 
about obstetrics, gynecology, and sexual health; books and 
photographs; online magazines; and resources designed for 
gays and lesbians. See App. 63a, ¶ 21. For example, Dr. 
Mitchell Tepper operates the Sexual Health Network Web site, 
which provides easy access to information about sexuality 
geared toward individuals with disabilities, including advice on 
sexual surrogacy and how to experience sexual pleasure. 

See 

App. 65a, ¶ 25. Salon Magazine is a leading online magazine 
featuring articles on current events, the arts, politics and 
sexuality. Salon publishes a regular column entitled “Sexpert 
Opinion” by author and sex therapist Susie Bright. See Court 
of Appeals Joint Appendix (“J.A.”) 139-40, 617-41. Several 
respondents host Web-based discussion groups and chat rooms 
that allow readers to converse on various subjects. 

See App. 

63a, ¶ 22. 

Like the vast majority of speakers on the Web, respondents 
provide virtually all of their online information for free. 

See 

App. 63a, ¶ 23. Like traditional newspapers and magazines, 
they earn advertising revenues by virtue of their speech. They 
are thus engaged in speech “for commercial purposes” within 
the meaning of COPA, because they communicate with the 
objective of making a profit. See App. 68a-69a, ¶ 33; 47 
U.S.C. § 231(e)(2)(B). Although certain respondents are large, 

4 

well-known Web publishers, others are start-up operations run 
by single individuals. See, e.g., App. 65a; J.A. 139-40. 

2. The Impact Of COPA On 
Communication On The Web 

Currently, approximately one third of the 3.5 million sites 
on the Web are commercial within the meaning of COPA in that 
their operators “intend to make a profit.” 
App. 67a, ¶ 27. 

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.” App. 69a, ¶ 34. The “vast 
majority of information . . . on the Web . . . is provided to users 
for free.” App. 63a, ¶ 23. It is generally not possible for a 
Web speaker to verify the age or geographic location of a 
person accessing the speaker’s content. See App. 62a, ¶ 18; 
App. 89a. 

COPA provides three affirmative defenses to Web site 
operators who provide content deemed “harmful to minors”: 
(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. See App. 70a- 
71a, ¶ 37; App. 111a. The district court found, and petitioner 
does not dispute, that there is no “authority that will issue a 
digital certificate that verifies a user’s age.” App. 70a-71a, ¶ 

37. Further, there are “no other reasonable measures” 
available to restrict access to minors. Id. Thus, the uncontested 
evidence showed that the only technologies currently available 
for compliance with COPA are 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. 

The essential problem with either option, as the district court 
found, is that requiring Web users to register or pay before 
accessing a site would deter adult users from accessing that site, 

5 

thus impermissibly burdening First Amendment rights. See 
App. 65a-67a, ¶¶ 25-26; 89a. Because almost all content on the 
Web is available without the need to register and provide 
personal information, Web users are reluctant to provide such 
information to Web sites. See App. 63a, ¶ 23; 69a, ¶ 35; 70a, ¶ 

36. Users “will only reveal credit card information at the time 
they want to purchase a product or service.” App. 70a, ¶ 36. 
For this reason, Web sites that have required registration or 
payment before granting access “have not been successful.” 
Id. 

Respondents testified that any mandatory registration would 
drive away their users. See J.A. 330-31, 344, 367-68, 370. For 
example, Dr. Tepper 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. 

In addition, to utilize COPA’s credit card defense, a content 
provider “would need to undertake several steps,” App. 72a, ¶ 
41, with start-up costs ranging from “approximately $300 . . . 
to thousands of dollars. . . .” App. 72a, ¶ 42. 

The district 

court found that “it was not clear from the conflicting 
testimony” whether credit card verification services will 
authorize or verify a credit card number in the absence of a 
financial transaction. App. 73a, ¶ 45. Without such a service, a 
content provider would have to charge the user’s credit card for 
accessing the content. See J.A. 126, 129. Even if this service 
were available, the credit card company would charge the 
content provider $0.15 to $0.25 per authorization. 

See App. 

73a, ¶ 45. Such per-authorization fees would allow users hostile 
to certain content to drive up costs to the provider by repeatedly 
accessing restricted content. See J.A. 133. 

Petitioner’s own expert testified that “the only way to 
comply with COPA regarding potentially harmful to minors 

6 

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.” 
App. 79a, ¶ 58. Web-based interactive fora are inherently 
dynamic, and there is no way to prohibit access to some 
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. Respondents testified 
that these interactive fora are important in attracting users to 
their Web sites. See J.A. 221. 

Finally, COPA’s credit card and adult access defenses would 
require speakers to redesign their Web sites in order to restrict 
only “harmful to minors” content. The district court found 
that this could be prohibitively expensive, and, in some cases, 
would require respondents to shield even some materials not 
“harmful to minors” behind age verification screens. As the 
district court recognized, 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. See App. 71a, ¶ 39; App. 78a, ¶ 56. 

COPA 

would require some Web sites to reorganize and redesign 
literally millions of files. See J.A. 158-59. A content provider 
also would have to reorganize individual files and pages in 
order to restrict only content that could be “harmful to 
minors”. See App. 77a, ¶ 54. In addition, even a single page 
of Web content could have some content prohibited under 
COPA and some that was not, making it difficult if not 
impossible to segregate such content. See App. 77a-78a, ¶ 55. 

In sum, the district court concluded that “the 
implementation of credit cards or adult verification screens in 

7 

front of material that is harmful to minors may deter users from 
accessing such materials and that the loss of users of such 
material may affect the speakers’ economic ability to provide 
such communications.” App. 89a. 

3. User-Based Filtering Programs 

In contrast to the burden imposed by COPA, user-based 
filtering software constitutes a less restrictive and more effective 
alternative. As the district court found, COPA does not even 
reach a substantial portion of material posted on the Web that 
may be “harmful to minors.” COPA 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. 
See App. 93a. In addition, at least forty percent of Web content 
originates abroad, and this material may be accessed by minors 
as easily as content that originates locally. See App. 62a, ¶ 20. 
In contrast, even the government’s expert conceded that user- 
based blocking software can block these materials, in addition 
to blocking Web-based commercial materials. See App. 81a- 
82a, ¶ 65. Thus, even recognizing the flaws of user-based 
blocking software, it is at least equally effective and less 
restrictive than COPA’s criminal penalties. 

B. The Court Of Appeals’ Ruling 

On appeal, the United States Court of Appeals for the Third 
Circuit upheld the district court’s ruling that COPA violates the 
First Amendment, see App. 3a, and specifically accepted the 
district court’s factual findings, see App. 12a. 

The court of appeals affirmed on other grounds and did not 
reach issues addressed by the district court. See App. 21a, n.19. 
The court of appeals did not reject the district court’s rationale, 
but rather held that “because the standard by which COPA 
gauges whether material is ‘harmful to minors’ is based on 
identifying ‘contemporary community standards[,]’ the 
inability of Web publishers to restrict access to their Web sites 

8 

based on the geographic locale of the site visitor, in and of 
itself, imposes an impermissible burden on constitutionally 
protected First Amendment speech.” App. 3a. 

SUMMARY OF THE ARGUMENT 

Like the CDA, which this Court unanimously struck down 
in ACLU I, COPA threatens protected speech with criminal 
sanctions and effectively suppresses a large amount of speech 
that adults have a constitutional right to communicate and 
receive on the Web. 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 regulations, this Court has imposed the highest 
level of constitutional scrutiny on content-based infringements 
of Internet speech. ACLU I, 521 U.S. at 868, 870, 885. COPA, 
like the CDA, fails this scrutiny. 

COPA’s criminal penalties apply to millions of commercial 
content providers whose communications on the Web 
“include[] any material that is harmful to minors” – even a 
single description or image on a Web page. Respondents’ 
threatened speech includes, for example, Andres Serrano 
photographs, sexually explicit poetry, interactive chats 
educating disabled persons on how to experience sexual 
pleasure, news stories about the Monica Lewinsky episode and 
an online radio show for gays and lesbians called “Dr. 
Ruthless.” See J.A. 606-07, 634-37, 656, 672-79, 709-13. 
COPA violates the First Amendment because there is still no 
effective way to prevent minors from obtaining prohibited 
speech without also deterring and burdening access by adults. 
See ACLU I, 521 U.S. at 876-77; App. 89a, 95a. In addition, 
COPA would force online speakers to abide by the standards of 
the most conservative community for determining what is 
“harmful to minors.” See ACLU I, 521 U.S. at 877-78; App. 
29a. Because COPA suffers from the same fundamental defects 

9 

that led the Court to strike down the CDA, this case does not 
merit the Court’s review. 

REASONS FOR DENYING THE WRIT 

I. BECAUSE COPA CONTAINS THE SAME 
DEFECTS AS THE CDA, WHICH THIS COURT 
HAS ALREADY FOUND UNCONSTITUTIONAL, 
THIS CASE DOES NOT MERIT REVIEW 

A. COPA Contains The Same Defects That 

Caused This Court To Hold That The CDA 
Was Unconstitutional 

COPA suffers from the very same fundamental defects that 
caused this Court to strike down the CDA as unconstitutional. 
Both statutes, in their attempt to deny minors access to certain 
speech, “effectively suppress[] a large amount of speech that 
adults have a constitutional right to receive and to address to 
one another” and are therefore unconstitutionally overbroad. 
ACLU I, 521 U.S. at 874. Petitioner has not identified a Circuit 
split or any other “compelling reason[],” Sup. Ct. R. 10, why 
this Court should revisit these same issues just four years later. 

Both the CDA and COPA are criminal statutes, which pose a 
very strong risk that they “may well cause speakers to remain 
silent rather than communicate even arguably unlawful words, 
ideas, and images.” ACLU I, 521 U.S. at 872; App. 95a. Both 
apply to speech that is constitutionally protected for adults. 
Both effectively prevent adults from accessing speech because 
there is no way to prevent minors from obtaining 
communications on the Web without also deterring and 
burdening access by adults. See ACLU I, 521 U.S. at 876-77; 
App. 89a, 95a. In addition, because both laws impose 
“community standards” on a medium that knows no 
geographical boundaries, both laws allow “any communication 
available to a nationwide audience [to] be judged by the 
standards of the community most likely to be offended by the 
message.” ACLU I, 521 U.S. at 877-78; App. 29a. 

10 

This Court has repeatedly held that content-based 
regulations, such as the relevant provisions of the CDA and 
COPA, are subject to strict scrutiny and are presumptively 
unconstitutional. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 
377, 382, 391 (1992). As the Court explained in ACLU I, there 
is “no basis for qualifying the level of First Amendment 
scrutiny that should be applied to this [Internet] medium.” 
521 U.S. at 870. Accordingly, such regulations must be 
justified by a compelling governmental interest and be narrowly 
tailored to effectuate that interest, i.e., there must be no less 
restrictive alternative to achieve that compelling interest. See id. 
at 874 (“Th[e] burden on adult speech is unacceptable if less 
restrictive alternatives would be at least as effective in achieving 
the legitimate purpose that the statute was enacted to serve.”). 

In ACLU I, this Court applied strict scrutiny and held that 
the CDA was unconstitutional because it was not narrowly 
tailored and would suppress non-obscene speech that this Court 
has found constitutionally protected for adults. See id. 
(“[s]exual expression which is indecent but not obscene is 
protected by the First Amendment”) (quoting Sable 
Communications, Inc. v. FCC, 492 U.S. 115, 126 (1989)). The 
Court emphasized, among other facts, the district court’s 
findings that “at the time of trial existing technology did not 
include any effective method for a sender to prevent minors 
from obtaining access to its communications on the Internet 
without also denying access to adults” and that “[a]s a practical 
matter . . . it would be prohibitively expensive for 
noncommercial—as well as some commercial—speakers who 
have Web sites to verify that their users are adults.” 
ACLU I, 

521 U.S. at 876-77. 

COPA suffers from these same defects. There is still no way 
for a speaker to prevent minors from obtaining access to its 
Web communications without deterring adult users. See App. 
89a-90a, 95a. Accordingly, both statutes effectively force 
speakers to withhold their speech from adults as well as minors. 

11 

COPA’s affirmative defenses, which are nearly identical to 
defenses found insufficient in the CDA, do not solve this 
problem. The district court’s undisputed findings establish that 
it is as true today as when this Court reviewed the CDA that 
there is no way to verify age in interactive fora without 
restricting access to all speech. See infra § II(A). 

It is still 

prohibitively expensive for respondents to use the only 
technologically feasible method for verifying age. See infra 
§ II(B). 

Finally, COPA – like the CDA – improperly relies on 

“community standards” to define the ambit of its reach. 

See 

ACLU I, 521 U.S. at 877-78; see also infra § III. 

COPA thus suffers from the same fundamental overbreadth 
that rendered the CDA invalid. By sweeping in material that is 
unquestionably protected for adults, COPA, like the CDA, 
impermissibly “‘burn[s] the house to roast the pig.’” ACLU I, 
521 U.S. at 882 (quoting Sable, 492 U.S. at 127). 

B. None Of The Alleged Differences Between 

COPA And The CDA Raise Any Novel Issues 
Warranting This Court’s Review 

Petitioner’s efforts to avoid the clear implications of this 
Court’s decision in ACLU I by attempting to distinguish COPA 
from the CDA, see Petition for a Writ of Certiorari (“Pet.”) 6-8, 
15-18, are unavailing. None of the differences between the two 
statutes have any constitutional significance. 

For example, petitioner stresses that COPA applies only to 
material communicated through the Web whereas the CDA 
applied to all forms of communication on the Internet. See Pet. 

6. But there is no question that COPA (like the CDA) bans a 
staggering amount of constitutionally protected 
communications between adults. Furthermore, many interactive 
fora such as chat rooms and discussion groups have now 
become Web-based. See App. 59a, ¶ 9. COPA applies to these 
millions of communications, effectively banning protected 

12 

speech in them because there is no way to determine the age of 
users. See App. 79a, ¶ 58.1 

Likewise, although COPA purportedly restricts only speech 
provided “for commercial purposes,” see Pet. 7, it effectively 
covers any speech provided for free on the Web by a 
commercial entity, not merely speech that proposes a 
commercial transaction. COPA sweeps in any individual or 
organization communicating with the objective of making a 
profit, whether by promoting and selling products over the Web 
or by selling space to advertisers or members.2 COPA’s 
restrictions thus include speech that is clearly subject to the 
highest level of First Amendment protection, such as poems, 
artwork and articles in Web magazines. See App. 52a-53a. The 
fact that the speakers may ultimately profit from their 
communications is constitutionally irrelevant. Indeed, any 
theory that the level of constitutional protection afforded to 
speech depends upon whether the speaker has a “commercial 

1 Although COPA, unlike the CDA, at least attempts to track the “harmful to 
minors” standard this Court approved in Miller v. California, 413 U.S. 15 
(1973), and Ginsberg v. New York, 390 U.S. 629 (1968), this flaw in the 
CDA was not the basis for the Court’s holding in ACLU I; rather, the Court 
found the CDA unconstitutional because, like COPA, it censored 
communications protected by the Constitution for adults. 

2 COPA applies broadly on its face to any Web site that, in the regular course 
of business, communicates any speech that “includes any material that is 
harmful to minors.” 47 U.S.C. § 231(e)(2)(B). The district court noted the 
broad scope of COPA, stating: “the text of COPA imposes liability on a 
speaker who knowingly makes any communication for commercial purposes 
‘that includes any material that is harmful to minors,’ and defines a speaker 
that is engaged in the business as one who makes a communication ‘that 
includes any material that is harmful to minors . . . as a regular course of 
such person’s trade or business (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).’” App. 52a. 
(emphasis in original). 

13 

purpose” would reverse longstanding precedents protecting 
communications such as newspaper articles and literary works. 
See New York Times v. Sullivan, 376 U.S. 254 (1964). 

II. EVEN IF THIS COURT HAD NOT ALREADY 
RULED THAT AN ESSENTIALLY IDENTI-CAL 
STATUTE IS UNCONSTITUTIONAL, REVIEW 
WOULD BE UNNECESSARY BECAUSE COPA IS 
CLEARLY OVERBROAD 

A. The Inability To Verify Age On The Web 

Renders COPA Overbroad 

Even if this Court had not already decided the 
constitutionality of a substantially identical statute, review would 
be unwarranted here because COPA’s criminal penalties on 
protected speech are clearly unconstitutional under this Court’s 
well-established precedent. See, e.g., Sable, 492 U.S. at 131 
(invalidating a conviction for distribution of indecent 
publications); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 
60, 74 (1983) (striking down a ban on mail advertisements for 
contraceptives); Erznoznik v. City of Jacksonville, 422 U.S. 205, 
217-18 (1975) (striking down a statute that criminalized 
showing of certain movie content at drive-in theaters); Butler v. 
Michigan, 352 U.S. 380, 383-84 (1957) (invalidating a 
conviction for distribution of indecent publications). 

As noted above, an inherent characteristic of the Web is that 
there is essentially no way to tell whether a Web user is a minor 
or an adult. Thus, it is not technologically possible for speakers 
on the Web to verify the age of a recipient who accesses their 
communications online. See App. 89a. There is no effective 
method for a sender to prevent minors from obtaining access to 
its communications on the Web without also deterring adults 
from accessing its communications. See App. 89a – 90a, 95a. 

In addition, COPA requires Web-based interactive chat 
rooms and discussion groups to restrict speech that is not even 
covered by the statute. “[T]he uncontroverted evidence 

14 

showed that there is no way to restrict the access of minors to 
harmful materials in chat rooms and discussion 
groups…without screening all users before accessing any 
content, even that which is not harmful to minors, or editing all 
content before it is posted to exclude material that is harmful to 
minors. This has the effect of burdening speech in these fora 
that is not covered by the statute.” App. 90a (citation omitted). 

COPA’s threat of prosecution, and burden on protected 
speech, violate the First Amendment, and are far more onerous 
than many speech restrictions struck down by this Court. 

See 

United States v. Playboy Entertainment Group, Inc., 529 U.S. 
803 (2000) (striking down law requiring cable operators to 
scramble sexually oriented programming); Denver Area Educ. 
Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727 (1996) 
(invalidating statute requiring cable operators to block certain 
cable channels). 

B. COPA’s Affirmative Defenses Do Not Save 

The Statute, Because They Will Prevent Or 
Deter Adult Web Users From Accessing A 
Wide Range Of Protected Speech 

COPA provides affirmative defenses for “good faith” 
efforts to restrict access by minors to material that is “harmful 
to minors,” such as by requiring the use of a credit card or 
adult access code. See 47 U.S.C. § 231(c)(1)(A). However, as 
the district court noted, “the implementation of credit card or 
adult verification screens in front of material that is harmful to 
minors may deter [adult] users from accessing such materials.” 
App. 89a. If Web providers utilize either COPA’s adult access 
code or credit card defenses, Web users would be required to 
provide identifying information, perhaps to an untrusted third- 
party Web site, before accessing protected speech. 

See J.A. 

379. As a result, COPA will deter adults from accessing 
restricted content because Web users are simply unwilling to 
provide identifying information in order to gain access to 
content. See App. 89a-90a; J.A. 330-31, 344, 367-68, 370 

15 

(customers would simply forgo accessing respondents’ material 
entirely if forced to apply for an adult access code, provide a 
credit card number, or pay for content). 

For example, although PlanetOut allows users to register 
voluntarily to receive free benefits, “less than 10% of the users 
to [the] site have registered.” App. 66a, ¶ 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].” App. 66a, ¶ 26. By contrast, PlanetOut has 
350,000 members and over two million total users have 
accessed the PlanetOut Web site. See J.A. 354-55, 368; see also 
J.A. 110-11, 134-35. 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. Similarly, this Court found in examining the 
CDA that credit card and adult access code requirements would 
unconstitutionally inhibit adult Web browsers. See ACLU I, 521 
U.S. at 857 n.23 (“There is evidence suggesting that adult 
users, particularly casual Web browsers, would be discouraged 
from retrieving information that required use of a credit card or 
password.”) (quoting district court). 

Furthermore, COPA’s threat of criminal penalties and 
economic disincentives will cause Web speakers to self-censor. 
Speakers who want to communicate “harmful to minors” 
materials to adults are forced by COPA into the Hobson’s 
choice of risking prosecution or implementing costly defenses. 
As the district court held, the result is certain to be widespread 
self-censorship. See App. 90a (“[C]ontent providers may feel 
an economic disincentive to engage in communications that are 
or may be considered to be harmful to minors and thus, may 
self-censor the content of their sites.”). This Court has 
routinely struck down economic burdens on the exercise of 
protected speech. See, e.g., Simon & Schuster, Inc. v. Members 
of the N.Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991) 

16 

(“ A statute is presumptively inconsistent with the First 
Amendment if it imposes a financial burden on speakers 
because of the content of their speech.”); Erznoznik, 422 U.S. 
at 217 (invalidating a statute that in effect required drive-in 
theater owners wishing to avoid prosecution either to restrict 
their movie offerings or construct expensive protective 
fencing). 

Moreover, although the financial cost to content providers 
of implementing COPA’s defenses contributes to COPA’s 
burden on speech, the district court correctly held that the 
“relevant inquiry is determining the burden imposed on the 
protected speech regulated by COPA, not the pressure placed 
on the pocketbooks or bottom lines of the [respondents.]” 
App. 88a. By providing economic disincentives for Web 
speakers to engage in certain online communications, COPA 
will cause speakers to self-censor speech that is constitutionally 
protected. Similarly, in striking down the CDA, this Court 
noted that the prohibitively high economic burden of age 
verification “must inevitably curtail a significant amount of 
adult communication on the Internet.” 
ACLU I, 521 U.S. at 

877. 

C. COPA Is Not Narrowly Tailored To Advance 

The Government’s Asserted Interest 

COPA also fails strict scrutiny because it will not even 
advance the government’s asserted state interest. Under strict 
(and even intermediate) scrutiny, a law “may not be sustained if 
it provides only ineffective or remote support for the 
government’s purpose.” Central Hudson Gas & Elec. Corp. v. 
Public Serv. Comm’n, 447 U.S. 557, 564 (1980). COPA does 
not satisfy this test. Despite its prohibitions, it does not prevent 
minors from gaining access to “harmful to minors” material 
on foreign Web sites, on non-commercial sites, and via non- 
Web-based protocols. See App. 93a. This major flaw 
“demonstrates the problems this statute has with efficaciously 
meeting its goal.” App. 93a. In fact, former Attorney General 

17 

Janet Reno herself recognized this flaw of COPA. In a letter 
sent to Congress before COPA passed, the Attorney General 
stated: 

Such a diversion [of law enforcement resources] 
would be particularly ill-advised in light of the 
uncertainty concerning whether the COPA 
would have a material effect in limiting minors’ 
access to harmful materials. There are 
thousands of newsgroups and Internet relay chat 
channels on which anyone can access 
pornography; and children would still be able to 
obtain ready access to pornography from a 
myriad of overseas web sites. 

Letter Dated October 5, 1998 from Department of Justice to 
Honorable Thomas Bliley, Chairman of House Committee on 
Commerce (Pls.’ Mem. of Law in Support of TRO, Ex. A) at 3. 

Furthermore, the district court held that there are less 
restrictive alternatives to COPA. See App. 93a-95a. For 
example, parental use of blocking software is both less 
restrictive and more effective than COPA. Such software blocks 
foreign sites and content on non-Web-based protocols, as well 
as material from amateur or non-commercial Web sites. 

See 

App. 94a. As the district court held, “blocking or filtering 
technology may be at least as successful as COPA would be in 
restricting minors’ access to harmful material online without 
imposing the burden on constitutionally protected speech that 
COPA imposes on adult users or Web site operators.” App. 
94a. Although user-based blocking programs are not perfect, 
both because they fail to screen some inappropriate material 
and because they block some valuable Web sites, a voluntary 
decision by concerned parents to use these products for their 
children constitutes a far less restrictive alternative than COPA’s 
imposition of criminal penalties for protected speech among 
adults. See ACLU I, 521 U.S. at 879. 

18 

Congress itself has recognized the usefulness of such user- 
based blocking software through another provision enacted 
along with COPA, and not challenged here, that requires 
Internet service providers to “notify [all new customers] that 
parental control protections (such as computer hardware, 
software or filtering services) are commercially available that 
may assist the customer in limiting access to material that is 
harmful to minors.” 47 U.S.C. § 230(d). This Court, 
moreover, has specifically relied on the ability of parents to 
block objectionable content as “less restrictive than 
[government] banning.” Playboy, 529 U.S. at 815 (finding 
that requiring cable operators upon request by a subscriber to 
scramble or block any unwanted channel was a less restrictive 
alternative than forcing operators to scramble channels as a 
default); see also Denver Area, 518 U.S. at 759-60 
(informational requirements and user-based blocking are more 
narrowly tailored than speaker-based schemes as a means of 
limiting minors’ access to indecent material on cable 
television). 3 

3 Playboy resolves the Third Circuit’s question regarding whether a parent’s 
decision to use blocking software can constitute a less restrictive alternative. 
App. 15a n.16. It is also important to note that the Third Circuit did not 
reject, nor did the government challenge on appeal, the district court’s factual 
finding that blocking software was more effective at achieving the 
government’s interest. 

19 

III. REVIEW IS ALSO UNNECESSARY BECAUSE THE 
COURT OF APPEALS CORRECTLY HELD THAT 
COPA UNCON-STITUTIONALLY REQUIRES 
SPEAKERS ON THE WEB TO ABIDE BY THE 
STANDARDS OF THE MOST RESTRICTIVE 
COMMUNITY OR RISK CRIMINAL 
PROSECUTION 

A. The Court Of Appeals’ Reasoning Is Correct 

Under Miller And Its Progeny 

Relying on the clear rulings of this Court, the court of 
appeals held that COPA is unconstitutionally overbroad because 
it subjects Web speakers across the nation to the most restrictive 
community’s standards for what is “harmful to minors.”4 Just 
as the inability under COPA to verify age on the Web 
effectively criminalizes protected communication between 
adults, the inability to verify the geographic location of Web 
users transforms COPA’s “community standards” requirement 
into a national mandate of the most restrictive community’s 
standards. The government does not attempt to challenge the 
long-standing doctrine prohibiting a national standard, or the 
factual findings that inevitably led the court of appeals to 
conclude that COPA violates that doctrine. Because this Court 
recently reaffirmed that doctrine in ACLU I, and because COPA 
is clearly unconstitutional for the other reasons discussed above, 
there is no reason for the Court to review this case. 

In Miller v. California, 413 U.S. 15 (1973), this Court 
articulated the community standards doctrine that has governed 

4 Respondents alleged in their complaint that COPA is unconstitutionally 
vague because it fails to define the relevant community that would establish 
the standard for what is “harmful to minors” on the global Web. See 
Complaint ¶¶ 26, 83, 200. Thus, despite the government’s assertion to the 
contrary, see Pet. 10, this argument was not raised for the first time by the 
court of appeals. 

20 

for almost 30 years.5 In defining the constitutionally 
permissible scope of speech regulation, this Court specifically 
adopted a local community standards test, and rejected the 
imposition of a national standard.6 “People in different States 
vary in their tastes and attitudes, and this diversity is not to be 
strangled by the absolutism of imposed uniformity.” Id. at 33. 
“[O]ur Nation is simply too big and too diverse for this Court 
to reasonably expect that such standards could be articulated 
for all 50 states in a single formulation.” Id. at 30. 

The language of COPA is modeled on Miller and attempts 
to impose a local community standard; it criminalizes 
“prurient” material as judged by “the average person, 
applying contemporary community standards.” Id. at 24 
(citations omitted). But the nature of the Internet effectively 
transforms that standard into a de facto national standard based 
on the most conservative community. As the district court 
found, Web publishers are without any means to limit access to 
their sites based on the geographic location of particular 
Internet users. See App. 62a, ¶ 18. The government did not 
challenge this factual finding on appeal, see App. 12a; to the 

5 The Miller test is “(a) whether ‘the average person, applying contemporary 
community standards’ would find that the work, taken as a whole, appeals to 
the prurient interest . . .; (b) whether the work depicts or describes, in a 
patently offensive way, sexual conduct specifically defined by the applicable 
state law; and (c) whether the work, taken as a whole, lacks serious literary, 
artistic, political, or scientific value.” Miller, 413 U.S. at 24. Though Miller 
involved the standards for judging obscene material, the local community 
standards test has also been applied to “harmful to minors” material. 

See, 

e.g., Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383 (1988). 

6 The prior obscenity test set out in A Book Named ‘John Cleland’s 
Memoirs of a Woman of Pleasure’ v. Massachusetts, 383 U.S. 413 (1966), 
had been interpreted to impose a national standard, which the Court in Miller 
specifically rejected in favor of requiring a local standard. 

See Miller, 413 

U.S. at 30-31. 

21 

contrary, it stipulated to it at the preliminary injunction hearing. 
See Joint Stipulations for the Preliminary Injunction Hearing 
¶ 41 (“Once a provider posts its content on the Internet and 
chooses to make it available to all, it generally cannot prevent 
that content from entering any geographic community.”). 

In 

ACLU I, this Court affirmed precisely the same fact. 521 U.S. 
at 853 (quoting district court). 

Practically, then, “when the 

UCR/California Museum of Photography posts to its Web site 
nudes by Edward Weston and Robert Mapplethorpe to 
announce that its new exhibit will travel to Baltimore and New 
York City, those images are available not only in Los Angeles, 
Baltimore, and New York City, but also in Cincinnati, Mobile, or 
Beijing.” Id. at 854 (quoting district court). 

Many other lower courts have also found that the Web is not 
geographically constrained. See, e.g., American Library Ass’n 

v. Pataki, 969 F. Supp. 160, 166-67, 171 (S.D.N.Y. 1997); 
ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); Cyberspace 
Communications, Inc. v. Engler, No. 99-2064, 2000 WL 
1769592 (6th Cir. Nov. 15, 2000), aff’g, 55 F. Supp. 2d 737 
(E.D. Mich. 1999); PSINet v. Chapman, 108 F. Supp. 2d 611 
(W.D. Va. 2000). 

Given these undisputed facts, the court of appeals correctly 
ruled that COPA is overbroad because speakers could be jailed 
for providing content that is constitutionally protected in many 
communities: 

[T]o avoid liability under COPA, affected Web 
publishers would either need to severely censor 
their publications or implement an age or credit 
card verification system whereby any material 
that might be deemed harmful by the most 
puritan of communities in any state is shielded 
behind such a verification system. Shielding 
such vast amounts of material behind 
verification systems would prevent access to 
protected material by any adult seventeen or 

22 

over without the necessary age verification 
credentials. Moreover, it would completely bar 
access to those materials to all minors under 
seventeen -- even if the material would not 
otherwise have been deemed “harmful” to 
them in their respective geographic 
communities. 

App. 24a-25a. Because speakers would be forced to conform 
their speech to the standards of the most restrictive 
communities, COPA’s use of community standards deprives 
adults and minors of speech that they have a constitutional right 
to access in their own communities. See App. 29a. 

Even Congress realized that “the applicability of 
community standards in the context of the Web is 
controversial.” H.R. Rep. No. 105-775, at 27 (1998). In an 
attempt to sidestep this defect, petitioner relies on a purported 
Congressional finding to argue that the “harmful to minors” 
standard is reasonably constant across the United States. 

See 

Pet. 20-21. But as the court of appeals correctly noted, “we 
have before us no evidence to suggest that adults everywhere in 
America would share the same standards for determining what 
is harmful to minors.” App. 31a. Indeed, the government put 
on no evidence at trial to suggest that standards were constant, 
and “[d]eference to a legislative finding cannot limit judicial 
inquiry when First Amendment rights are at stake.” Landmark 
Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978); 
see also Sable, 492 U.S. at 129.7 

7 The government also argues that the serious value prong (which is a 
national standard) creates a national floor, and that “a reviewing court may 
also enforce substantive limitations on what may be found to be ‘patently 
offensive’ with respect to minors.” Pet. 22. But these arguments applied in 
Miller and its progeny as well, and the Court nonetheless held that a 
nationwide standard for all three prongs would be defective. 

23 

This Court has already recognized the constitutional 
implications of the inability of online speakers to prevent their 
speech from entering a particular community. In ACLU I, the 
Court stated that “the ‘community standards’ criterion as 
applied to the Internet means that any communication available 
to a nation wide audience will be judged by the standards of the 
community most likely to be offended by the message.” 521 
U.S. at 877-78. Thus, in addition to being consistent with 
Miller and its progeny, the Third Circuit’s ruling relies on this 
Court’s reasoning in ACLU I and a growing body of 
jurisprudence that flows from it. See Pataki, supra; Johnson, 
supra; Engler, supra; Chapman, supra. 

B. The Third Circuit’s Reasoning Is Fully 

Consistent With Hamling And Sable 

The government argues that subjecting the same speaker to 
varying standards is not unusual or unconstitutional, citing 
Hamling v. United States, 418 U.S. 87 (1974), and Sable, 
supra. See Pet. 12, 18, 19. As the court of appeals held, 
however, those cases are easily distinguishable from the present 
case. See App. 26a. Sable and Hamling involved the 
regulation of the actual sale of pornography by phone and 
through the mail, respectively. In both instances, the services 
were provided only to paid subscribers, and providers could 
simply refuse to send the material to subscribers living in more 
conservative geographic communities. 

Unlike Web speakers, 

then, the phone and mail providers in those cases could control 
the distribution of controversial material with respect to the 
geographic communities into which they released it. See App. 
26a; see also Sable, 492 U.S. at 125-26; Hamling, 418 U.S. at 
106. In addition, in contrast to the phone and mail services, the 
vast majority of speech affected by COPA is communicated free 
of charge on the Web, includes valuable information about 
sexual dysfunction, gay and lesbian resources, and art, and 
could be found “harmful” in some communities and valuable 
– even life saving – in others. See App. 63a, ¶¶ 21, 23. 

24 

This Court has recognized that each medium of expression 
is unique, and “must be assessed for First Amendment purposes 
by standards suited to it.” Southeastern Promotions, Ltd. v. 
Conrad, 420 U.S. 546, 557 (1975); see also Playboy, 529 U.S. 
at 813. In contrast to speakers using other media, Web speakers 
cannot restrict access to their speech based on the geographic 
location of their users. See App. 26a. “‘[A]n Internet user 
cannot foreclose access to . . . work from certain states or send 
differing versions of . . . communication[s] to different 
jurisdictions. . . . The Internet user has no ability to bypass any 

particular state.’” App. 26a-27a (citing Pataki, 969 F. Supp. at 
183). Given the unique features of the Web, COPA forces Web 
speakers to either comply with the most stringent standard or 
“‘[entirely] forego Internet communication of the message that 
might or might not subject [the publisher] to prosecution.’” 
App. 27a (citing Pataki, 969 F. Supp. at 183). The court of 
appeals thus correctly held that COPA’s reliance on local 
community standards, while workable in other media, 
unconstitutionally restricts adults from communicating and 
accessing protected speech on the Web. 

CONCLUSION 

For all the reasons discussed above, the petition for 
certiorari should be denied. 

Respectfully submitted, 

ANN E. BEESON* 
CHRISTOPHER A. HANSEN 
STEVEN R. SHAPIRO 
AMERICAN CIVIL LIBERTIES 
UNION 

FOUNDATION 
125 Broad Street, 18th Floor 
New York, NY 10004 
(212) 549-2500 

*Counsel of Record 

25 
DAVID L. SOBEL 
ELECTRONIC PRIVACY INFORMATION 

CENTER 
1718 Connecticut Avenue NW 
Washington, D.C. 20009 
(202) 483-1140 

LEE TIEN 
ELECTRONIC FRONTIER FOUNDATION 
454 Shotwell Street 
San Francisco, CA 94110 
(415) 436-9333 

April 16, 2001 

Attorneys for All Respondents 

ALEXANDRA A.E. SHAPIRO 
CHRISTOPHER R. HARRIS 
MICHELE M. PYLE 
MARK H. GOLDBERG 
LATHAM & WATKINS 
885 Third Avenue, Suite 1000 
New York, NY 10022 
(212) 906-1200 

Of Counsel to American Civil 
Liberties Union Foundation on 
behalf of respondents American Civil 
Liberties Union, Androgyny Books, 
Inc. d/b/a A Different Light 
Bookstores, Artnet Worldwide 
Corporation, BlackStripe, Adazzi Inc. 
d/b/a Condomania, Electronic 
Frontier Foundation, Electronic 
Privacy Information Center, Free 
Speech Media, OBGYN.net, 
Philadelphia Gay News, PlanetOut 
Corporation, Powell’s Bookstore, 
RiotGrrl, Salon Internet, Inc. and 
West Stock, Inc., now known as 
ImageState North America, Inc.