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. 

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

PETITION FOR A WRIT OF CERTIORARI 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

Counsel of Record 

STUART E. SCHIFFER 

Deputy Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

IRVING L. GORNSTEIN 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
JACOB M. LEWIS 
CHARLES SCARBOROUGH 

Attorneys 

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

QUESTION PRESENTED 

The Child Online Protection Act (COPA) makes it 
unlawful to make any communication for commercial 
purposes by means of the World Wide Web that is 
available to minors and that includes material that is 
“harmful to minors,” unless good faith efforts are made 
to prevent children from obtaining access to such 
material. 47 U.S.C. 231(a)(1) and (c)(1) (Supp. IV 1998). 
COPA relies in part on “community standards” to iden- 
tify material that is “harmful to minors.” 47 U.S.C. 
231(e)(6) (Supp. IV 1998). The question presented is 
whether the court of appeals properly barred enforce- 
ment of COPA on First Amendment grounds because it 
relies on community standards to identify material that 
is harmful to minors. 

(I) 

II 

PARTIES TO THE PROCEEDINGS 

Petitioner is John Ashcroft, Attorney General of the 
United States. Respondents are American Civil 
Liberties Union, Androgyny Books, Inc. d/b/a/ a 
Different Light BookStores, American Booksellers 
Foundation for Free Expression, Artnet Worldwide 
Corporation, Blackstripe, Addazi Inc., d/b/a Con- 
domania, 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. 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 2 

Constitutional and statutory provisions involved ................... 
2 

Statement ........................................................................................ 2 

Reasons for granting the petition ............................................... 
12 

Conclusion ....................................................................................... 25 

Appendix A ..................................................................................... 
1a 

Appendix B ..................................................................................... 
40a 

Appendix C ..................................................................................... 
101a 

Appendix D ..................................................................................... 
117a 

Appendix E ..................................................................................... 
124a 

TABLE OF AUTHORITIES 

Cases: 

American Booksellers Ass’n v. Virginia, 882 F.2d 

125 (4th Cir. 1989), cert. denied, 494 U.S. 1056 

(1990) ........................................................................................ 24 

American Booksellers v. Webb, 919 F.2d 1493 

(11th Cir. 1990), cert. denied, 500 U.S. 942 

(1991) ........................................................................................ 24 

Commonwealth v. American Booksellers Ass’n, 

372 S.E.2d 618 (Va. 1988) ..................................................... 

22 

Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), 

cert. denied, 520 U.S. 1117 (1997) ....................................... 

24 

FCC v. Pacifica Found., 438 U.S. 726 (1978) ................... 

7 

Ginsberg v. New York, 390 U.S. 629 (1968) ........................ 4, 5, 14 

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

12, 18, 19 

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

22 

M.S. News Co. v. Casado, 721 F.2d 1281 (10th 

Cir. 1983) ................................................................................. 

24 

Miller v. California, 413 U.S. 15 (1973) ............................. 4, 5, 14 

Pope v. Illinois, 481 U.S. 497 (1987) .................................... 21 

(III) 

IV 

Cases—Continued: Page 

Reno v. American Civil Liberties Union, 521 U.S. 

844 (1997) ............................................................................. 

passim 

Sable Commications of Cal. v. FCC, 492 U.S. 115 

(1989) ......................................................................... 

12, 18, 19, 20 

United States v. Gainey, 380 U.S. 63 (1965) ...................... 

15 

United States Dep’t of Def. v. Meinhold, 510 U.S. 939 

(1993) ........................................................................................ 24 

Uppper Midwest Booksellers Ass’n v. City of 

Minneapolis, 780 F.2d 1389 (8th Cir. 1985) ..................... 

24 

Virginia v. American Bookseller Ass’n, 484 U.S. 383 

(1998) ........................................................................................ 

22, 23 

Constitution and statutes: 

U.S. Const.: 

Amend. I ............................................................... 

2, 3, 15, 22, 24 

Amend. V ................................................................................ 

8 

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

Div. C, Tit. XIV, §§ 1401-1406, 112 Stat. 2681-736 

to 2681-741 (47 U.S.C. 231 (Supp. IV 1998)) ..................... 

3 

47 U.S.C. 231(a)(1) (Supp. IV 1998) ............ 

4, 6, 7, 13, 117a 

47 U.S.C. 231(c)(1) (Supp. IV 1998) ..................... 

5, 13, 119a 

47 U.S.C. 231(e)(6) (Supp. IV 1998) .............. 

4, 13, 14, 123a 

47 U.S.C. 231(e)(6)(A) (Supp. IV 1998) ................... 

7, 123a 

47 U.S.C. 231(e)(6)(B) (Supp. IV 1998) ................... 

7, 123a 

47 U.S.C. 231(e)(6)(C) (Supp. IV 1998) ............... 

7, 21, 123a 

47 U.S.C. 231(e)(7) (Supp. IV 1998) ........................... 

7, 123a 

47 U.S.C. 231 note (Supp. IV 1998) ........................ 

5, 6, 115a 

Communications Decency Act of 1996, Pub. L. No. 

104-104, Tit. V, § 502, 110 Stat. 133-134 (47 U.S.C. 

223 (Supp. II 1996)) ............................................................... 

2 

47 U.S.C. 223(a) (Supp. II 1996) ..................................... 

2 

47 U.S.C. 223(d) (Supp. II 1996) ..................................... 

2 

47 U.S.C. 223(e)(5) (Supp. II 1996) ................................ 3 

V 

Miscellaneous: Page 

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

Legislative Proposals to Protect Children from 

Inappropriate Materials on the Internet: Hearing 
Before the Subcomm. on Telecomm., Trade, and 
Consumer Protection of the House Comm. on 
Commerce, 105th Cong., 2d Sess. (1998) ........................... 

3 
S. Rep. No. 225, 105th Cong., 2d Sess. (1998) .............. 3, 4, 8, 10 

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. 

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

PETITION FOR A WRIT OF CERTIORARI 

The Acting Solicitor General, on behalf of the 
Attorney General of the United States, respectfully 
petitions for a writ of certiorari to review the judgment 
of the United States Court of Appeals for the Third 
Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 1a- 
39a) is reported at 217 F.3d 162. The opinion of the 
district court granting respondents’ motion for a pre- 
liminary injunction (App., infra, 40a-100a) is reported 
at 31 F. Supp. 2d 473. The opinion of the district court 
granting respondents’ application for a temporary re- 
straining order (App., infra, 101a-114a) is unreported. 

(1) 

2 

JURISDICTION 

The judgment of the court of appeals was entered on 
June 22, 2000. A petition for rehearing was denied 
on September 15, 2000 (App., infra, 124a-125a). On 
December 5, 2000, Justice Souter extended the time 
within which to file a petition for a writ of certiorari to 
and including January 15, 2001. On January 9, 2001, 
Justice Souter further extended the time within which 
to file a petition for a writ of certiorari to and including 
February 12, 2001. The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1). 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

The First Amendment to the United States Consti- 
tution provides in relevant part that “Congress shall 
make no law * * * abridging the freedom of speech, or 
of the press.” The pertinent provisions of the Child 
Online Protection Act are reprinted in an appendix to 
this petition. App., infra, 115a-123a. 

STATEMENT 

1. This case involves the scope of Congress’s power 
to protect children from the harmful effects of sexually 
explicit material on the Internet. Congress first sought 
to address that serious problem through the enactment 
of the Communications Decency Act of 1996 (CDA). 
See Pub. L. No. 104-104, Tit. V, § 502, 110 Stat. 133-134. 
The CDA prohibited the knowing transmission of 
“indecent” messages over the Internet to persons 
under the age of 18, 47 U.S.C. 223(a) (Supp. II 1996), as 
well as the sending or display of “patently offensive” 
sexually explicit messages in a manner available to 
those under 18 years of age. 47 U.S.C. 223(d) (Supp. II 
1996). The CDA provided a defense to prosecution to 

3 

persons who had “taken, in good faith, reasonable, 
effective, and appropriate actions under the circum- 
stances to restrict or prevent access by minors” to 
covered communications. 47 U.S.C. 223(e)(5) (Supp. II 
1996). 

In Reno v. American Civil Liberties Union (Reno v. 
ACLU), 521 U.S. 844 (1997), the Court held that the 
CDA’s regulation of “indecent” and “patently offensive” 
speech violated the First Amendment. The Court re- 
affirmed that the government has a “ ‘compelling 
interest in protecting the physical and psychological 
well-being of minors’ which extend[s] to shielding them 
from indecent messages that are not obscene by adult 
standards.” Id. at 869. It concluded, however, that the 
government had failed to demonstrate that the CDA 
was the least restrictive alternative available to further 
that compelling interest. Id. at 879. 

2. Congress reexamined the problem of children’s 
access to sexually explicit material on the Internet in 
light of this Court’s decision in Reno v. ACLU. Both 
the House and the Senate conducted hearings on the 
subject. See Legislative Proposals to Protect Children 
from Inappropriate Materials on the Internet: Hearing 
Before the Subcomm. on Telecomm., Trade, and Con- 
sumer Protection of the House Comm. on Commerce, 
105th Cong., 2d Sess. (1998); S. Rep. No. 225, 105th 
Cong., 2d Sess. 8 (1998) (discussing hearings held by the 
Senate Committee on Commerce, Science and Trans- 
portation). Following those hearings, Congress enacted 
and the President signed into law the Child Online 
Protection Act (COPA), Pub. L. No. 105-277, Div. C, 
Tit. XIV, §§ 1401-1406, 112 Stat. 2681-736 to 2681-741 
(47 U.S.C. 231 (Supp. IV 1998)). In crafting COPA, 
Congress sought to “address[] the specific concerns 
raised by the Supreme Court” when it invalidated the 

4 

CDA. See H.R. Rep. No. 775, 105th Cong., 2d Sess. 12 
(1998); see also S. Rep. No. 225, supra, at 2. 

a. COPA authorizes the imposition of criminal and 
civil penalties on any person who “knowingly and with 
knowledge of the character of the material, in interstate 
or foreign commerce by means of the World Wide Web, 
makes 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) (Supp. 
IV 1998). COPA defines “material that is harmful to 
minors” to mean “any communication, picture, image, 
graphic image file, article, recording, writing, or other 
matter of any kind” that is “obscene” or that 

(A) the average person, applying contemporary 
community standards, would find, taking the 
material as a whole and with respect to minors, is 
designed to appeal to, or is designed to pander to, 
the prurient interest; 

(B) depicts, describes, or represents, in a man- 
ner patently offensive with respect to minors, an 
actual or simulated sexual act or sexual contact, an 
actual or simulated normal or perverted sexual act, 
or a lewd exhibition of the genitals or post- 
pubescent female breast; and 

(C) taken as a whole, lacks serious literary, 
artistic, political, or scientific value for minors. 

47 U.S.C. 231(e)(6) (Supp. IV 1998) (App., infra, 12a). 
COPA’s definition of nonobscene material that is 
“harmful to minors” parallels the three-part “harmful to 
minors” standard this Court approved in Ginsberg v. 
New York, 390 U.S. 629 (1968), except that it has been 
modified to take into account the greater flexibility 
permitted under Miller v. California, 413 U.S. 15 
(1973). Compare 47 U.S.C. 231(e)(6) (Supp. IV 1998) 

5 

with Ginsberg, 390 U.S. at 632-633, and Miller, 413 U.S. 
at 24. See H.R. Rep. No. 775, supra, at 13, 27-28. 
COPA’s definition also tracks the standard that is used 
in state laws that prohibit the display to the public of 
material that is harmful to minors and that require that 
such material be placed behind a blinder rack, in a 
sealed wrapper, or in an opaque cover. Id. at 13. Like 
those state laws, COPA is intended to shield children 
from material that is “clearly pornographic and in- 
appropriate for [them],” but that is not obscene by adult 
standards. Id. at 28. 

COPA provides “an affirmative defense to prosecu- 
tion” if a person, “in good faith, has restricted access by 
minors to material that is harmful to minors.” 47 U.S.C. 
231(c)(1) (Supp. IV 1998) (App., infra, 117a). A person 
can qualify for that affirmative defense by (1) “requir- 
ing 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 that are feasible under available 
technology.” 47 U.S.C. 231(c)(1) (Supp. IV 1998). 

b. Congress enacted legislative findings that explain 
the basis for COPA. 

47 U.S.C. 231 note (Supp. IV 1998) 
(Congressional Findings). Congress found that the 
“widespread availability of the Internet” continues to 
“present[] opportunities for minors to access materials 
through the World Wide Web in a manner that can 
frustrate parental supervision or control.” 47 U.S.C. 
231 note (Supp. IV 1998) (Finding 1). Congress further 
determined that “the protection of the physical and 
psychological well-being of minors by shielding them 
from materials that are harmful to them is a compelling 
governmental interest.” 47 U.S.C. 231 note (Supp. IV 
1998) (Finding 2). Congress noted that “the industry 
has developed innovative ways to help parents and 

6 

educators restrict material that is harmful to minors 
through parental control protections and self- 
regulation.” 47 U.S.C. 231 note (Supp. IV 1998) (Find- 
ing 3). It found, however, that “such efforts have not 
provided a national solution to the problem of minors 
accessing harmful material on the World Wide Web.” 
47 U.S.C. 231 note (Supp. IV 1998) (Finding 3). Con- 
gress concluded that “a prohibition on the distribution 
of material harmful to minors, combined with legitimate 
defenses, is currently the most effective and least 
restrictive means by which to satisfy the compelling 
government interest.” 47 U.S.C. 231 note (Supp. IV 
1998) (Finding 4). 

c. COPA differs from the CDA in important ways 
that support Congress’s judgment that COPA is the 
least restrictive way to further the government’s com- 
pelling interest in protecting children from the effects 
of materials that are harmful to minors. 

First, the CDA applied not only to communications 
on the World Wide Web, but to all forms of com- 
munication on the Internet, including communications 
through e-mail, listservs, newsgroups, and chat rooms. 
Reno v. ACLU, 521 U.S. at 851. In contrast, COPA 
applies only to material posted on the World Wide Web. 
47 U.S.C. 231(a)(1) (Supp. IV 1998); H.R. Rep. No. 775, 
supra, at 12, 25. 

Second, the CDA prohibited the display or trans- 
mittal of materials that were “indecent” or “patently 
offensive,” without defining those terms, and the CDA 
did not indicate whether the “indecent” and “patently 
offensive” determinations “should be made with respect 
to minors or the population as a whole.” Reno v. ACLU, 
521 U.S. at 871 & n.37, 873, 877. 

COPA, by contrast, is 
specifically limited to material that is “patently 
offensive with respect to minors,” and it identifies the 

7 

particular types of sexual activities the depiction, 
description, or representation of which is prohibited. 47 
U.S.C. 231(e)(6)(B) (Supp. IV 1998). 

Third, the CDA applied to large amounts of non- 
pornographic materials that have serious educational 
and other value, including any of the seven “dirty 
words” used in the monologue in FCC v. Pacifica 
Foundation, 438 U.S. 726 (1978), discussions about pri- 
son rape or safe sexual practices, artistic images that 
include nude subjects, and arguably the card catalog of 
the Carnegie Library. 

Reno v. ACLU, 521 U.S. at 873, 
877-878. Indeed, the Court noted, the CDA “omit[ted] 
any requirement that the ‘patently offensive’ material 
covered by [the CDA] lack serious literary, artistic, 
political, or scientific value.” Id. at 865. In contrast, 
COPA contains all three prongs of the Ginsberg test, 
and thus, by its terms, applies only to material that is 
designed to appeal to the “prurient interest” of minors 
and that, “taken as a whole, lacks serious literary, 
artistic, political, or scientific value for minors.” 47 
U.S.C. 231(e)(6)(A) and (C) (Supp. IV 1998). 

Fourth, the CDA defined a minor as any person 
under the age of 18. Reno v. ACLU, 521 U.S. at 859, 
865-866. In contrast, COPA, like the state law upheld 
in Ginsberg, defines minor to mean “any person under 
17 years of age.” 47 U.S.C. 231(e)(7) (Supp. IV 1998). 

Fifth, the CDA applied not only to commercial 
entities or transactions like the statute in Ginsberg, but 
also to all nonprofit entities and to individuals posting 
messages on their own computers. Reno v. ACLU, 521 
U.S. at 856, 865, 877. In contrast, COPA applies only 
to those Web communications that are made “for com- 
mercial purposes.” 47 U.S.C. 231(a)(1) (Supp. IV 1998). 

Sixth, the CDA made it unlawful for parents to 
permit their children to use the family computer to 

8 

view indecent or patently offensive material, regardless 
of whether the parents believed that it was appropriate 
for their children to obtain that material because of its 
value. Reno v. ACLU, 521 U.S. at 865, 878. In contrast, 
COPA contains no such prohibition. H.R. Rep. No. 775, 
supra, at 15; see also S. Rep. No. 225, supra, at 6. 

3. The American Civil Liberties Union and several 
other entities and individuals (respondents) filed suit in 
the United States District Court for the Eastern 
District of Pennsylvania against the Attorney General 
of the United States, seeking to invalidate COPA. 
Respondents alleged that COPA violates the First and 
Fifth Amendments to the Constitution, and they sought 
to enjoin its enforcement. App., infra, 12a & n.13, 42a. 
The district court entered a preliminary injunction 
preventing any enforcement of the harmful-to-minors 
provisions of the Act against anyone. App., infra, 40a- 
100a. Many of the court’s findings and conclusions, 
however, support the Act’s constitutionality. The court 
found that “[m]any of the same characteristics which 
make cyberspace ideal for First Amendment 
expression—ease of participation and diversity of 
content and speakers—make it a potentially harmful 
media for children.” App., infra, 41a. The court 
explained that “[a] child with minimal knowledge of a 
computer, the ability to operate a browser, and the skill 
to type a few simple words may be able to access sexual 
images and content over the World Wide Web.” Ibid. 
For example, the court noted, “typing the word 
‘dollhouse’ or ‘toys’ into a typical Web search engine 
will produce a page of links, some of which connect to 
what would be considered by many to be pornographic 
Web sites,” and those sites offer “free sexually explicit 
images and animated graphic image files.” Ibid. The 
district court held that Congress has a compelling 

9 

interest in shielding children from such pornographic 
materials. Id. at 90a. 

The court also found that adult identification systems 
are readily available that permit Web site operators to 
prevent children from obtaining access to harmful 
materials while still offering such materials to adults. 
App., infra, 71a. The court noted, for example, that 
Adult Check provides (at no cost to the Web site 
operator) a script that can be placed at any point on a 
Web site to which the operator wishes to prevent 
access by minors. Id. at 75a. An adult user who comes 
across such a screen may click on a link to the Adult 
Check site and immediately purchase a Personal 
Identification Number (PIN) for an annual fee of $16.95, 
return to the original site, and use the PIN to obtain 
access to the site. Id. at 75a-76a. 

The district court nonetheless held that respondents 
were likely to prevail in their challenge to COPA for 
two reasons. First, the court found that the placement 
of adult screens in front of materials that are harmful 
to children “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.” App., infra, 89a. Based on that 
finding, the court concluded that respondents were 
likely to show that COPA imposes a burden on speech 
that is protected for adults. Id. at 90a. 

Second, the district court concluded that “it is not 
apparent” that the government “can meet its burden to 
prove that COPA is the least restrictive means avail- 
able to achieve the goal of restricting the access of 
minors to [harmful-to-minors] material.” App., infra, 
93a. In the court’s view, “blocking or filtering tech- 
nology may be at least as successful as COPA” in 
restricting the access of children to harmful material. 

10 

Id. at 94a. The court acknowledged that blocking 
software is both over and under inclusive—it blocks 
some sites that are not harmful, and it allows other 
sites that are harmful to slip through. Ibid. The court 
also found that “[i]t is possible that a computer-savvy 
minor with some patience would be able to defeat the 
blocking device.” Id. at 82a. The court concluded, 
however, that the use of blocking software may be as 
effective as COPA, because software blocks certain 
sources of harmful material that COPA does not, such 
as foreign sites and content outside the Web. Ibid. 

4. The court of appeals affirmed the district court’s 
judgment granting a preliminary injunction. App., 
infra, 1a-39a. It did so, however, on a ground upon 
which the district court had not relied, the parties had 
not briefed on appeal, and the court of appeals had 
raised for the first time at oral argument, id. at 21a, 22a 

n.19. 
Like the district court, the court of appeals held that 
“the government has a compelling interest in protecting 
children from material that is harmful to them, even if 
not obscene by adult standards.” App., infra, 20a. And 
unlike the district court, the court of appeals did not 
question the government’s ability to demonstrate that 
COPA is the least restrictive means available to further 
that compelling interest. Indeed, the court of appeals 
specifically rejected the district court’s reliance on 
blocking software as a less restrictive alternative. Id. 
at 15a n.16. The court of appeals also acknowledged 
that, in passing COPA, Congress sought to “address[] 
the specific concerns raised by the Supreme Court” in 
Reno v. ACLU in invalidating the CDA, App., infra, 6a 
(quoting H.R. Rep. No. 775, supra, at 12, and citing S. 
Rep. No. 225, supra, at 2), and it expressed the view 
that “there may be no other means by which harmful 

11 

material on the Web may be constitutionally 
restricted,” id. at 3a. The court nevertheless enjoined 
the enforcement of COPA. 

The court of appeals based its “particular determina- 
tion of COPA’s likely unconstitutionality * * * on 
COPA’s reliance on ‘contemporary community stan- 
dards’ in the context of the electronic medium of the 
Web to identify material that is harmful to minors.” 
App., infra, 21a. The court stated that COPA’s reliance 
on community standards, “in and of itself, imposes an 
impermissible burden on constitutionally protected 
First Amendment speech.” Id. at 3a. The court further 
stated that COPA’s reliance on community standards 
affects the constitutionality of “the entire COPA 
statute.” Id. at 21a. The court could “see no means by 
which to excise those ‘unconstitutional’ elements of the 
statute from those that are constitutional.” Id. at 33a. 

The court of appeals noted that in Reno v. ACLU, 
this Court, in identifying various features of the CDA 
that contributed to its breadth of coverage, had pointed 
out that “the ‘community standards’ criterion as applied 
to the Internet means that any communication available 
to a nationwide audience will be judged by the stan- 
dards of the community most likely to be offended by 
the message.” See App., infra, 22a (quoting 521 U.S. at 
577-578). In that light, the court found it significant 
that “Web publishers are without any means to limit 
access to their sites based on the geographic location 
of particular Internet users.” Id. at 24a. As a result, 
the court reasoned, “to 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 

12 

verification system.” Id. at 24a-25a. If Web publishers 
were to choose to place their harmful material behind 
screens, the court explained, it “would prevent access 
to protected material by any adult * * * without the 
necessary age verification credentials,” and it “would 
completely bar access to those materials to all minors 

* * * even if the material would not otherwise have 
been deemed ‘harmful’ to them in their respective 
geographic communities.” Id. at 25a. Based on those 
considerations, the court concluded that COPA “im- 
poses an overreaching burden and restriction on consti- 
tutionally protected speech.” Id. at 29a. 

The court of appeals acknowledged that in Hamling 

v. United States, 418 U.S. 87 (1974), and Sable Com- 
munications of California v. FCC, 492 U.S. 115 (1989), 
this Court upheld the application of varying community 
standards to persons whose commercial conduct had 
effects in different geographic areas. App., infra, 25a- 
26a. The court of appeals distinguished those cases, 
however, on the ground that the parties involved “had 
the ability to control the distribution of controversial 
material with respect to the geographic communities 
into which they released it.” Id. at 26a. 

The government’s petition for rehearing and rehear- 
ing en banc was denied. App., infra, 124a-125a. Judge 
Alito voted in favor of rehearing en banc. Id. at 125a. 

REASONS FOR GRANTING THE PETITION 

The court of appeals, relying on an argument not 
addressed by the district court or made by the parties 
on appeal, held that COPA’s reliance on community 
standards to identify material that is harmful to minors 
“must lead inexorably to a holding of a likelihood of 
unconstitutionality of the entire COPA statute.” App., 
infra, 21a. The court’s decision prevents the govern- 

13 

ment from enforcing COPA against anyone under any 
circumstances, and the court was further of the view 
that there may be no constitutional means to protect 
children from the harmful effects of the voluminous 
amount of pornographic material on the World Wide 
Web. Id. at 3a. The court of appeals thus has gravely— 
indeed, in its own view, perhaps fatally—constricted 
Congress’s power to address that serious problem. The 
court of appeals’ holding is also incorrect. The court’s 
decision is based on a misreading of this Court’s 
decision in Reno v. ACLU, 521 U.S. 844 (1997), and it 
conflicts with decisions of this Court that have upheld 
the application of community standards to determine 
whether material appeals to the prurient interest and is 
patently offensive. Review by this Court is therefore 
warranted. 

A. COPA makes it unlawful to make any communi- 
cation for commercial purposes by means of the World 
Wide Web that is available to minors and that includes 
material that is “harmful to minors,” unless good 
faith efforts are made to prevent children from obtain- 
ing access to such material. 47 U.S.C. 231(a)(1) and 
(c)(1) (Supp. IV 1998). Material is harmful to minors if 
it (1) is designed to appeal to the “prurient interest” of 
minors, (2) depicts sexual activity or specified parts of 
the anatomy in a manner that is “patently offensive” 
with respect to minors, and (3) “taken as a whole, lacks 
serious literary, artistic, political, or scientific value for 
minors.” 47 U.S.C. 231(e)(6) (Supp. IV 1998). COPA 
relies on community standards to determine whether 
material appeals to the “prurient interest” of minors 

14 

and is “patently offensive” with respect to minors. 47 
U.S.C. 231(e)(6) (Supp. IV 1998).1 

The court of appeals held that COPA’s reliance on 
community standards to identify material that is harm- 
ful to minors “must lead inexorably to a holding of a 
likelihood of unconstitutionality of the entire COPA 
statute.” App., infra, 21a. The court flatly stated 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 
based on the geographic locale of the site visitor, in and 
of itself, imposes an impermissible burden on consti- 
tutionally protected First Amendment speech.” Id. at 
3a. The court also stated, without qualification, that 
COPA’s use of community standards leads to a “result 
[that] imposes an overreaching burden and restriction 
on constitutionally protected speech.” Id. at 29a. 

As relief, the court of appeals did not simply enjoin 
the use of community standards under COPA. The 
court enjoined the enforcement of COPA across the 

1 COPA’s definition of material that is “harmful to minors” par- 
allels the three-part “harmful to minors” standard this Court ap- 
proved in Ginsberg v. New York, 390 U.S. 629 (1968), except that it 
has been modified to take into account the greater flexibility per- 
mitted under Miller v. California, 413 U.S. 15 (1973), including 
Miller’s approval of the use of “community standards” to deter- 
mine whether material appeals to the “prurient interest” and is 
“patently offensive.” Compare 47 U.S.C. 231(e)(6) (Supp. IV 1998) 
with Ginsberg, 390 U.S. at 632-633, and Miller, 413 U.S. at 24, 30. 
Although the text of the standard approved in Miller uses the 
phrase “community standards” in describing the “prurient in- 
terest” inquiry, id. at 24, Miller makes clear that community stan- 
dards also apply to the inquiry into whether material is “patently 
offensive,” id. at 30. Congress intended to incorporate that aspect 
of Miller. See H.R. Rep. No. 775, supra, at 13, 27. 

15 

board, concluding that COPA’s reliance on community 
standards affects the constitutionality of “the entire 
COPA statute.” App., infra, 21a. In the court’s view, 
the use of community standards to identify material 
that is harmful to minors “is an integral part of the 
statute, permeating and influencing the whole of the 
statute,” and the court could “see no means by which to 
excise those ‘unconstitutional’ elements of the statute 
from those that are constitutional (assuming for the 
moment, without deciding, that the remaining clauses 
of COPA are held to be constitutional).” Id. at 33a. 
Moreover, as the court saw it, “there may be no other 
means by which harmful material on the Web may be 
constitutionally restricted.” Id. at 3a. The court 
therefore apparently was prepared to leave Congress 
no room to assert its authority to protect children from 
pornographic material on the Web. 

The court of appeals’ decision is therefore dramatic 
and extraordinary in its scope. The decision prevents 
the government from enforcing a recent Act of Con- 
gress against anyone under any circumstances, and it 
suggests that there may be no constitutional means to 
protect children from the harmful effects of the 
voluminous amount of pornographic material on the 
World Wide Web. The court of appeals’ decision there- 
fore clearly warrants this Court’s review. See United 
States v. Gainey, 380 U.S. 63, 65 (1965) (certiorari 
granted “to review the exercise of the grave power of 
annulling an Act of Congress”). 

B. Review is also warranted because the court of 
appeals erred in its First Amendment analysis of 
COPA’s reliance on community standards. The court of 
appeals premised its constitutional ruling on a finding 
that “Web publishers are without any means to limit 
access to their sites based on the geographic location of 

16 

particular Internet users.” App., infra, 24a. As a 
result, the court reasoned, “to 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.” Id. at 24a-25a. In the court’s 
view, under this Court’s decision in Reno v. ACLU, id. 
at 22a, that consequence “imposes an overreaching 
burden and restriction on constitutionally protected 
speech,” id. at 29a. 

1. The court of appeals’ reading of Reno v. ACLU is 
incorrect. The sentence in Reno v. ACLU discussing 
community standards, on which the court of appeals 
relied, was part of a two-paragraph discussion in which 
the Court noted that “[t]he breadth of the CDA’s cover- 
age is wholly unprecedented.” 521 U.S. at 877. In that 
discussion, the Court identified as factors contributing 
to the CDA’s breadth that it was “not limited to com- 
mercial speech or commercial entities,” but rather 
applied to “all nonprofit entities and individuals posting 
indecent messages or displaying them on their own 
computers in the presence of minors”; that the terms 
“indecent” and “patently offensive” used in the CDA 
were undefined and covered “large amounts of non- 
pornographic material with serious educational or other 
value”; and that the CDA criminalized parental de- 
cisions to allow children to view covered material. Id. 
at 877-878. It was in connection with the second of 
those features that the Court pointed out that “the 
‘community standards’ criterion as applied to the 
Internet means that any communication available to a 
nationwide audience will be judged by the standards of 

17 

the community most likely to be offended by the 
message.” Ibid. 

The Court did not suggest that the breadth of the 
CDA rendered it per se unconstitutional, much less that 
the CDA’s reliance on community standards was per se 
unconstitutional. Instead, the Court held that “[t]he 
breadth of this content-based restriction of speech im- 
poses an especially heavy burden on the Government to 
explain why a less restrictive provision would not be as 
effective as the CDA.” 521 U.S. at 879. The Court then 
invalidated the CDA because the government failed to 
satisfy that burden. Ibid. 

The court of appeals’ reliance on Reno v. ACLU is 
misplaced for two reasons. First, the use of a commun- 
ity standards criterion was only one of several factors 
that cumulatively led the Court in Reno v. ACLU to 
place an especially heavy burden of justification on the 
government, and none of the other factors is present 
here. Unlike the CDA, COPA defines the covered 
material as that which is both designed to appeal to the 
“prurient interest” and is “patently offensive” “with re- 
spect to minors”; it enumerates the particular sexual 
activities that are within its scope; it applies only to 
communications made for commercial purposes; it ex- 
pressly does not cover material that has “serious 
literary, artistic, political, or scientific value” for 
minors; and it does not penalize the decisions of parents 
to permit their children to view “harmful” material. 
Because COPA is carefully limited in scope—and 
because under COPA reliance on community standards 
is itself limited to determining what adults would 
conclude appeals to the prurient interest and is 
patently offensive specifically “with respect to minors” 
—COPA’s reliance on community standards is quite 
different from that in the CDA. COPA therefore does 

18 

not trigger any burden of justification beyond the one 
that applies to other content-based restrictions. 

Second, even if we assume that COPA’s reliance on 
community standards raises the same concerns as all 
the factors together raised in Reno v. ACLU, COPA’s 
reliance on community standards at most places “an 
especially heavy burden” on the government to show 
that COPA is the least restrictive alternative. 521 U.S. 
at 879. Rather than proceeding to that step in the 
analysis, however, the court of appeals instead held that 
COPA’s reliance on community standards, “in and of 
itself, imposes an impermissible burden on 
constitutionally protected First Amendment speech.” 
App., infra, 3a. That error had dramatic consequences, 
because the court of appeals did not find that the 
government failed to show that COPA is the least 
restrictive alternative available to protect children 
from harmful material on the Web. To the contrary, the 
court of appeals specifically rejected the district court’s 
reliance on blocking software as a less restrictive 
alternative, id. at 15a n.16, 38a n.24, and it expressed 
the view that “there may be no other means by which 
harmful material on the Web may be constitutionally 
restricted,” id. at 3a. Reno v. ACLU therefore provides 
no support for the court of appeals’ decision 
invalidating COPA. 

2. The court of appeals’ decision regarding COPA’s 
reliance on community standards also conflicts with this 
Court’s decisions in Hamling v. United States, 418 U.S. 
87 (1974), and Sable Communications of California, 
Inc. v. FCC, 492 U.S. 115 (1989). In Hamling, the 
Court rejected the contention that a federal statute 
that makes it unlawful to use the mail to distribute 
obscene publications must incorporate a single national 
standard of obscenity. The Court stated that “[t]he fact 

19 

that distributors of allegedly obscene materials may 
be subjected to varying community standards in the 
various federal judicial districts into which they 
transmit the materials does not render a federal statute 
unconstitutional because of the failure of application of 
uniform national standards of obscenity.” 418 U.S. at 
106. 

In Sable, the Court upheld the constitutionality of a 
federal prohibition against obscene “dial-a-porn” tele- 
phone messages. The Court rejected the contention 
that the dial-a-porn ban is unconstitutional because “it 
places message senders in a ‘double bind’ by compelling 
them to tailor all their messages to the least tolerant 
community.” 492 U.S. at 124. The Court held that 
“[t]here is no constitutional barrier under Miller to pro- 
hibiting communications that are obscene in some 
communities under local standards even though they 
are not obscene in others.” Id. at 125-126. The Court 
explained that “[i]f Sable’s audience is comprised of 
different communities with different local standards, 
Sable ultimately bears the burden of complying with 
the prohibition on obscene messages.” Id. at 126. 

The court of appeals sought to distinguish Hamling 
and Sable on the ground that the parties involved in 
those cases “had the ability to control the distribution 
of controversial material with respect to the geographic 
communities into which they released it.” App., infra, 
26a. The Court’s analysis in Hamling and Sable, 
however, did not depend on that fortuity. Instead, the 
controlling principle that emerges from Hamling and 
Sable is that a person whose commercial conduct has 
effects in more than one community has the responsi- 
bility to ensure that those effects are lawful in each of 
the affected communities. That principle applies as 

20 

much to a commercial pornographer on the World Wide 
Web as to the parties involved in Hamling and Sable. 

When persons post material on the Web, they make 
it “available, simultaneously, to all communities in the 
world where a computer can be plugged in.” H.R. Rep. 
No. 775, supra, at 28. Web publishers who make com- 
munications for commercial purposes also obtain the 
benefits of a nationwide market for their products. 
Under Hamling and Sable, there is “no constitutional 
barrier” to placing the responsibility upon such publish- 
ers to make sure that their communications are not 
harmful to children in the communities that those 
communications reach. Sable, 492 U.S. at 125-126. “If 
[such a publisher’s] audience is comprised of different 
communities with different local standards, [that 
publisher] ultimately bears the burden of complying 
with the [restrictions] on [harmful-to-minors] mes- 
sages.” Id. at 126. 

3. The court of appeals’ constitutional analysis also 
fails to give sufficient weight to the features of COPA 
that make its reliance on community standards parti- 
cularly unproblematic. 

a. First, Congress expressly found that COPA’s 
harmful to minors standard is “one that is reasonably 
constant among adults in America with respect to what 
is suitable for minors.” H.R. Rep. No. 775, supra, at 28. 
The court of appeals rejected Congress’s judgment 
based on this Court’s statement in Miller that com- 
munities throughout the United States may vary in 
their views on what material is obscene for adults. 
App., infra, 32a. The court erred in relying on that 
statement. Even if the average adult in a particular 
State or locality might feel that adults should have 
relatively free access to pornographic material, there is 
no reason to believe that those same adults would want 

21 

children in the State or locality to be exposed to such 
material. For similar reasons, there is every reason to 
expect a far greater degree of agreement from com- 
munity to community with respect to what adults 
believe is suitable for children on a nationwide and 
readily accessible medium like the Internet. Moreover, 
whatever divergence might exist at the margins, 
Congress had an ample basis for concluding that there 
would be no significant geographical divergence on the 
question whether children should have access to the 
numerous sites that freely display the equivalent of 
Penthouse centerfolds as teasers to entice the purchase 
of other more graphic material. 

b. COPA also establishes firm limits on the kinds of 
material that can be viewed as “harmful to minors,” 
thereby confining any potential divergence among com- 
munities to a narrow band of material. By its terms, 
COPA applies only to material that, taken as a whole, 
has no “serious literary, artistic, political, or scientific 
value for minors.” 47 U.S.C. 231(e)(6)(C) (Supp. IV 
1998). In the obscenity context, this Court has held 
that community standards do not apply in deciding 
whether material has serious value. Pope v. Illinois, 
481 U.S. 497, 500-501 (1987). Instead, the question is 
whether “a reasonable person would find such value in 
the material, taken as a whole.” Id. at 501. Congress 
intended for that same approach to be followed in 
deciding whether material has serious value for 
children. H.R. Rep. No. 775, supra, at 27-28. 

The serious value prong “allows appellate courts to 
impose some limitations and regularity * * * by 
setting, as a matter of law, a national floor for socially 
redeeming value.” Reno v. ACLU, 521 U.S. at 873. The 
existence of that prong of the inquiry also undermines 
the court of appeals’ assumption that COPA requires 

22 

Web publishers to place “vast amounts of material” 
behind age verification screens, App., infra, 25a, except 
to the extent that the court of appeals was referring to 
the obligations of commercial purveyors of what is truly 
pornographic for minors. Compare Commonwealth v. 
American Booksellers Ass’n, 372 S.E.2d 618, 624 (Va. 
1988) (finding, upon certification following this Court’s 
decision in Virginia v. American Booksellers Ass’n, 484 
U.S. 383 (1998), that none of the 16 books that the 
plaintiff booksellers submitted as perhaps covered by 
the harmful-to-minors standard in the Virginia dis- 
play law lacked serious literary, artistic, political, or 
scientific value). 

Moreover, just as this Court held in Jenkins v. 
Georgia, 418 U.S. 153 (1974), that the First Amendment 
imposes “substantive constitutional limitations,” en- 
forceable by a reviewing court, on what a jury may find 
to be “patently offensive” for adults, see id. at 159-161, 
a reviewing court may also enforce substantive limita- 
tions on what may be found to be “patently offensive” 
with respect to minors. The harmful-to-minors test was 
intended to capture material that is “clearly porno- 
graphic and inappropriate for minor children.” H.R. 
Rep. No. 775, supra, at 28. Congress did not intend to 
permit communities to treat as patently offensive 
“entertainment, library, or news materials that merely 
contain nudity or sexual information.” Ibid. That 
limitation adds important additional protection against 
significant geographic variations in what may be found 
harmful to minors. 

c. To the extent that there remains some meaningful 
degree of divergence among communities concerning 
what material is harmful to minors, a commercial Web 
publisher can easily comply with COPA by placing 
behind an age verification screen any material that 

23 

appears to satisfy all three prongs of the statutory 
definition. That is the approach a commercial Web 
publisher would be likely to follow even if it had to 
comply with the standards of a single community. The 
placement of material behind adult verification screens 
that reasonably appears designed to appeal to the 
prurient interest of minors, depicts sexual activity or 
certain parts of the anatomy in a manner that is 
patently offensive with respect to minors, and lacks any 
serious value for minors, does not impose an unconsti- 
tutional burden on adult access to such material. 

The district court found that adult verification 
services would provide personal identification numbers 
(PINs) to adults for $16.95 a year, and would furnish 
Web site operators with the software necessary to 
screen for such numbers at no cost. App., infra, 75a- 
76a. And the court of appeals even identified a Web 
service that will provide a person who has a valid credit 
card an adult PIN “without cost.” Id. at 14a n.15 (citing 
www.freecheck.com). But whether an adult PIN costs 
$16.95 per year or is free, it is not an unacceptable price 
to pay for protecting children from the harmful effects 
of graphic pornographic images. 

d. By requiring the placement of material covered 
by the Act behind age verification screens, COPA in 
effect directs “the commercial pornographer to put 
sexually explicit images ‘behind the counter.’ ” 

H.R. 
Rep. No. 775, supra, at 15. COPA therefore requires 
nothing more than what state “blinder rack,” “sealed 
wrapper,” “opaque cover,” and other display laws re- 
quire in the world outside cyberspace. See, e.g., 
Virginia v. American Booksellers Ass’n, 484 U.S. 383 
(1988). Despite claims that such laws impose an un- 
constitutional burden on adult access to protected 
speech, those laws have been repeatedly upheld. See, 

24 

e.g., Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), 
cert. denied, 520 U.S. 1117 (1997); American Book- 
sellers v. Webb, 919 F.2d 1493, 1509 (11th Cir. 1990), 
cert. denied, 500 U.S. 942 (1991); American Booksellers 
Ass’n v. Virginia, 882 F.2d 125, 127-128 (4th Cir. 1989), 
cert. denied, 494 U.S. 1056 (1990); Upper Midwest 
Booksellers Ass’n v. City of Minneapolis, 780 F.2d 
1389, 1399 (8th Cir. 1985); M.S. News Co. v. Casado, 721 
F.2d 1281, 1289 (10th Cir. 1983). There is no basis for 
reaching a different conclusion here. 

C. No further proceedings in the lower courts are 
needed to clarify the question presented or to render 
that question suitable for resolution by this Court. As 
previously noted, the court of appeals held that COPA’s 
reliance on community standards leads inexorably to 
the conclusion, here and now, that the Attorney 
General must be enjoined on First Amendment grounds 
from enforcing COPA against anyone. No further 
proceedings in the district court are needed for this 
Court to resolve that legal issue at this stage. 

Moreover, the government has been subject for some 
time to a nationwide preliminary injunction that pre- 
vents it from enforcing COPA against anyone.2 Given 
the nature of the court of appeals’ decision affirming 
that preliminary injunction based on its view of com- 
munity standards, and the denial of en banc review, 
there is every reason to expect that further pro- 
ceedings in the district court would simply result in a 

2 The district court rejected the government’s contention that 
any injunction should be limited to barring enforcement of the Act 
against the parties who brought this action. App., infra, 109a-110a 

n.8. But see United States Department of Defense v. Meinhold, 
510 U.S. 939 (1993) (staying injunction insofar as it granted relief 
to persons other than plaintiff). 

25 

permanent injunction of a similarly wide scope on the 
same ground, and an affirmance of that injunction by 
the court of appeals. The result would be simply to 
delay this Court’s resolution of the important question 
presented concerning Congress’s ability to rely on com- 
munity standards in determining whether material 
appeals to the prurient interest and is patently offen- 
sive with respect to minors. That result would only ex- 
acerbate the adverse consequences of the decision 
below. 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

STUART E. SCHIFFER 

Deputy Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

IRVING L. GORNSTEIN 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
JACOB M. LEWIS 
CHARLES SCARBOROUGH 

Attorneys 

FEBRUARY 2001 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

No. 99-1324 

AMERICAN CIVIL LIBERTIES UNION; 
ANDROGYNY BOOKS, INC. D/B/A A DIFFERENT 
LIGHT BOOKSTORES; 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; 
POWELL’S BOOKSTORE; RIOTGRRL; 
SALON INTERNET, INC.; WEST STOCK, INC.; 
PLANETOUT CORPORATION 

v. 

JANET RENO, IN HER OFFICIAL CAPACITY 

AS ATTORNEY GENERAL OF THE UNITED STATES, 
APPELLANT 

[Argued: Nov. 4, 1999 
Opinion filed: June 22, 2000] 

Before: NYGAARD, MCKEE Circuit Judges and 

GARTH, Senior Circuit Judge 

(1a) 

2a 

OPINION OF THE COURT 

GARTH, Circuit Judge: 

This appeal “presents a conflict between one of 
society’s most cherished rights—freedom of 
expression—and one of the government’s most pro- 
found obligations—the protection of minors.” Ameri- 
can Booksellers v. Webb, 919 F.2d 1493, 1495 (11th Cir. 
1990). The government challenges the District Court’s 
issuance of a preliminary injunction which prevents the 
enforcement of the Child Online Protection Act, Pub. L. 
No. 105-277, 112 Stat. 2681 (1998) (codified at 47 U.S.C. 
§ 231) (“COPA”), enacted in October of 1998. At issue 
is COPA’s constitutionality, a statute designed to 
protect minors from “harmful material” measured by 
“contemporary community standards” knowingly 
posted on the World Wide Web (“Web”) for commercial 
purposes.1 

We will affirm the District Court’s grant of a pre- 
liminary injunction because we are confident that the 
ACLU’s attack on COPA’s constitutionality is likely to 
succeed on the merits. Because material posted on the 
Web is accessible by all Internet users worldwide, and 
because current technology does not permit a Web 

1 The District Court exercised subject matter jurisdiction 
pursuant to the general federal question statute, 28 U.S.C. 
§ 1331. This court exercises appellate jurisdiction pursuant to 
28 U.S.C. § 1292(a)(1), which provides a court of appeals with juris- 
diction over appeals from “[i]nterlocutory orders of the district 
courts of the United States . . . granting, continuing, modifying, 
refusing, or dissolving injunctions . . . except where a direct 
review may be had in the Supreme Court.” 

3a 

publisher to restrict access to its site based on the geo- 
graphic locale of each particular Internet user, COPA 
essentially requires that every Web publisher subject 
to the statute abide by the most restrictive and con- 
servative state’s community standards in order to avoid 
criminal liability. Thus, because the standard by which 
COPA gauges whether material is “harmful to minors” 
is based on identifying “contemporary community stan- 
dards” the inability of Web publishers to restrict access 
to their Web sites based on the geographic locale of the 
site visitor, in and of itself, imposes an impermissible 
burden on constitutionally protected First Amendment 
speech. 

In affirming the District Court, we are forced to rec- 
ognize that, at present, due to technological limitations, 
there may be no other means by which harmful 
material on the Web may be constitutionally restricted, 
although, in light of rapidly developing technological 
advances, what may now be impossible to regulate 
constitutionally may, in the not-too-distant future, 
become feasible. 

I. BACKGROUND 

COPA was enacted into law on October 21, 1998. 
Commercial Web publishers subject to the statute that 
distribute material that is harmful to minors are re- 
quired under COPA to ensure that minors do not access 
the harmful material on their Web site. COPA is 
Congress’s second attempt to regulate the dissemina- 
tion to minors of indecent material on the Web/ 
Internet. The Supreme Court had earlier, on First 
Amendment grounds, struck down Congress’s first 
endeavor, the Communications Decency Act, (“CDA”) 

4a 

which it passed as part of the Telecommunications Act 
of 1996.2 See Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 
2329, 138 L.Ed.2d 874 (1997) (“Reno II”). To best 
understand the current challenge to COPA, it is neces- 
sary for us to briefly examine the CDA. 

A. CDA 

The CDA prohibited Internet users from using the 
Internet to communicate material that, under con- 
temporary community standards, would be deemed 
patently offensive to minors under the age of eighteen. 
See Reno II, 521 U.S. at 859-60, 117 S. Ct. 2329.3 In so 

2 For ease of reference the various applicable cases will be 
referred to as follows: ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 
1996), hereinafter “Reno I” (addressing CDA); Reno v. ACLU, 521 
U.S. 844, 117 S. Ct. 2329, 138 L.Ed.2d 874 (1997), hereinafter “Reno 
II” (striking down the CDA as unconstitutional); ACLU v. Reno, 
31 F. Supp.2d 473 (E.D. Pa. 1999), hereinafter “Reno III” (case 
currently on appeal addressing constitutionality of COPA). 

3 The Communications Decency Act, 47 U.S.C. § 223(d) 
provides that: 

Whoever— 

“(1) in interstate or foreign communications know- 
ingly—” 

“(A) uses an interactive computer service to send a 
specific person or persons under 18 years of age, or” 

“(B) uses any interactive computer service to display in a 

manner available to a person under 18 years of age, ‘any com- 
ment, request, suggestion, proposal, image, or other communi- 
cation that, in context, depicts or describes, in terms patently 
offensive as measured by contemporary community standards, 
sexual or excretory activities or organs, regardless of whether 
the user of such service placed the call or initiated the 
communication; or’ ” 

5a 

restricting Internet users, the CDA provided two af- 
firmative defenses to prosecution; (1) the use of a credit 
card or other age verification system, and (2) any good 
faith effort to restrict access by minors. See id. at 860, 
117 S. Ct. 2329. In holding that the CDA violated the 
First Amendment, the Supreme Court explained that 
without defining key terms the statute was unconsti- 
tutionally vague. Moreover, the Court noted that the 
breadth of the CDA was “wholly unprecedented” in 
that, for example, it was “not limited to commercial 
speech or commercial entities . . . [but rather] [i]ts 
open-ended prohibitions embrace all nonprofit entities 
and individuals posting indecent messages or displaying 
them on their own computers.” Id. at 877, 117 S. Ct. 
2329. 

Further, the Court explained that, as applied to the 
Internet, a community standards criterion would effec- 
tively mean that because all Internet communication is 
made available to a worldwide audience, the content of 
the conveyed message will be judged by the standards 
of the community most likely to be offended by the 
content. See id. at 877-78. Finally, with respect to the 
affirmative defenses authorized by the CDA, the Court 
concluded that such defenses would not be economically 
feasible for most noncommercial Web publishers, and 
that even with respect to commercial publishers, the 
technology had yet to be proven effective in shielding 

“(2) knowingly permits any telecommunications facility 

under such person’s control to be used for an activity 
prohibited by paragraph (1) with the intent that it be used for 
such activity” 

“shall be fined under Title 18, or imprisoned not more than 
two years, or both.” 

6a 

minors from harmful material. See id. at 881. As a 
result, the Court held that the CDA was not tailored so 
narrowly as to achieve the government’s compelling 
interest in protecting minors, and that it lacked the 
precision that the First Amendment requires when a 
statute regulates the content of speech. See id. at 874. 
See also United States v. Playboy Entertainment 
Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 146 L.Ed.2d 
865 (U.S. 2000). 

B. COPA 

COPA, the present statute, attempts to “address[ ] 
the specific concerns raised by the Supreme Court” in 
invalidating the CDA. H.R. REP. NO. 105-775 at 12 
(1998); See S.R. REP. NO. 105-225, at 2 (1998). COPA 
prohibits an individual or entity from: 

knowingly and with knowledge of the character of 
the material, in interstate or foreign commerce by 
means of the World Wide Web, mak[ing] any com- 
munication 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) (emphasis added). As part of its 
attempt to cure the constitutional defects found in the 
CDA, Congress sought to define most of COPA’s key 
terms. COPA attempts, for example, to restrict its 
scope to material on the Web rather than on the Inter- 
net as a whole;4 to target only those Web com- 

4 COPA defines the clause “by means of the World Wide Web” 
as the “placement of material in a computer server-based file 
archive so that it is publicly accessible, over the Internet, using 
hypertext transfer protocol or any successor protocol.” 47 U.S.C. 
§ 231(e)(1). 

7a 

munications made for “commercial purposes”;5 and to 
limit its scope to only that material deemed “harmful to 
minors.” 

Under COPA, whether material published on the 
Web is “harmful to minors” is governed by a three-part 
test, each of which must be found before liability can 
attach:6 

(A) the average person, applying contemporary 
community standards, would find, taking the 
material as a whole and with respect to minors, is 
designed to appeal to, or is designed to pander to, 
the prurient interest; 

5 COPA defines the clause “commercial purposes” as those 
individuals or entities that are “engaged in the business of making 
such communications.” 47 U.S.C. § 231(e)(2)(A). In turn, COPA 
defines a person “engaged in the business” as one 

who makes a communication, or offers to make a communi- 
cation, by means of the World Wide Web, that includes any 
material that is harmful to minors, devotes time, attention, or 
labor to such activities, as a regular course of such person’s 
trade or business, with the objective of earning a profit as a 
result of such activities (although it is not necessary that the 
person make a profit or that the making or offering to make 
such communications be the person’s sole or principal business 
or source of income). 

Id. § 231(e)(2)(B). 

6 In the House Report that accompanied the bill that even- 
tually became COPA, this “harmful to minors” test attempts to 
conform to the standards identified by the Supreme Court in 
Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L.Ed.2d 195 
(1968), as modified by Miller v. California, 413 U.S. 15, 93 S. Ct. 
2607, 37 L.Ed.2d 419 (1973) in identifying “patently offensive” 
material. See H.R. REP. NO. 105-775, at 13 (1998). 

8a 

(B) depicts, describes, or represents, in a manner 
patently offensive with respect to minors, an actual 
or simulated sexual act or sexual contact, an actual 
or simulated normal or perverted sexual act, or a 
lewd exhibition of the genitals or post-pubescent 
female breast; and 

(C) taken as a whole, lacks serious, literary, 
artistic, political, or scientific value for minors. 

47 U.S.C. § 231(e)(6) (emphasis added).7 The parties 
conceded at oral argument that this “contemporary 
community standards” test applies to those com- 
munities within the United States, and not to foreign 
communities. Therefore, the more liberal community 
standards of Amsterdam or the more restrictive com- 
munity standards of Tehran would not impact upon the 
analysis of whether material is “harmful to minors” 
under COPA. 

COPA also provides Web publishers subject to the 
statute with affirmative defenses. If a Web publisher 
“has restricted access by minors to material that is 
harmful to minors” through the use of a “credit card, 
debit account, adult access code, or adult personal 
identification number . . . a digital certificate that 
verifies age . . . or by any other reasonable measures 
that are feasible under available technology,” then no 
liability will attach to the Web publisher even if a minor 
should nevertheless gain access to restricted material 

7 Under COPA, a minor is defined as one under age seven- 
teen. See 47 U.S.C. § 231(e)(7). 

9a 

under COPA. 47 U.S.C. § 231(c)(1).8 COPA violators 
face both criminal (maximum fines of $50,000 and a 
maximum prison term of six months, or both) and civil 
(fines of up to $50,000 for each day of violation) 
penalties.9 

C. Overview of the Internet and the World Wide Web 

In recent years use of the Internet and the Web has 
become increasingly common in mainstream society. 
Nevertheless, because the unique character of these 
new electronic media significantly affect our opinion 
today, we briefly review their relevant elements. 

10 

The Internet is a decentralized, self-maintained 
networking system that links computers and computer 
networks around the world, and is capable of quickly 
transmitting communications. See American Libraries 
Ass’n v. Pataki, 969 F. Supp. 160, 164 (S.D.N.Y. 1997); 
ACLU v. Reno, 31 F. Supp.2d 473, 481 (E.D. Pa. 1999) 
(“Reno III”). Even though the Internet appears to be a 
“single, integrated system” from a user’s perspective, 
in fact no single organization or entity controls the 
Internet. ACLU v. Reno, 929 F. Supp. 824, 838 (E.D. 

8 The defense also applies if an individual or entity attempts 
“in good faith to implement a defense” listed above. See id. 
47 U.S.C. § 231(c)(2). 

9 An individual found to have intentionally violated COPA also 
faces an additional fine of not more than $50,000 for each day of 
violation. See 47 U.S.C. § 231(a)(2). 

10 For more thorough descriptions of the Internet and the Web 
see e.g., Reno I, 929 F. Supp. 824, 830-45; Reno II, 521 U.S. 844, 117 
S. Ct. 2329, 138 L.Ed.2d 874; American Libraries Ass’n v. Pataki, 
969 F. Supp. 160, 164-67 (S.D.N.Y. 1997); Hearst Corp. v. Gold- 
berger, 1997 WL 97097 *1 (S.D.N.Y. Feb. 26, 1997) (citing cases). 

10a 

Pa. 1996) (“Reno I”); Reno III, 31 F. Supp.2d at 484. As 
a result, there is no “centralized point from which 
individual Web sites or services can be blocked from 
the Web.” Id. Although estimates are difficult because 
of the Internet’s rapid growth, it was recently esti- 
mated that the Internet connects over 159 countries 
and more than 109 million users. See ACLU v. 
Johnson, 194 F.3d 1149, 1153 (10th Cir. 1999). 

The World Wide Web is a publishing forum con- 
sisting of millions of individual “Web sites” each 
containing information such as text, images, illustra- 
tions, video, animation or sounds provided by that site’s 
creator. See American Libraries, 969 F. Supp. at 166. 
Some of these Web sites contain sexually explicit 
material. See Reno III, 31 F. Supp.2d at 484. As a 
publishing forum, the Web is the best known method of 
communicating information online. See id. Information 
is said to be published on the Web as soon as it is made 
available to others by connecting the publisher’s com- 
puter to the Internet. See Reno I, 929 F. Supp. at 844; 
Reno III, 31 F. Supp.2d at 483. Each site is connected 
to the Internet by means of certain protocols that 
permit “the information to become part of a single body 
of knowledge accessible by all Web visitors.” American 
Libraries, 969 F. Supp. at 166; Reno III, 31 F. Supp.2d 
at 483. 

11 As a part of this unified body of knowledge, 

11 A user who wishes to access the Web resources employs a 
“browser.” Browser software—such as Netscape Navigator, 
Mosaic, or Internet Explorer—enables the user to display, print, 
and download documents that are formatted in the standard Web 
formatting language. See American Libraries, 969 F. Supp. at 166. 
The Web “uses a ‘hypertext’ formatting language called hypertext 
markup language (HTML), and programs that ‘browse’ the Web 
can display HTML documents containing text, images, sound, 

11a 

Web pages are all linked together so that the Internet 
user can freely move from one Web page to another by 
“clicking” on a “link.” See id. Because the Internet has 
an “international, geographically-borderless nature,” 

12 

with the proper software every Web site is accessible 
to all other Internet users worldwide. See American 
Libraries, 969 F. Supp. at 166; Reno I, 929 F. Supp. at 
837; Reno III, 31 F. Supp.2d at 483-84. Indeed, the 
Internet “negates geometry . . . it is fundamentally 
and profoundly anti-spatial. You cannot say where it is 
or describe its memorable shape and proportions or tell 
a stranger how to get there. But you can find things in 
it without knowing where they are. The [Internet] is 
ambient—nowhere in particular and everywhere at 
once.” Doe v. Roe, 191 Ariz. 313, 955 P.2d 951, 956 
(1998). 

It is essential to note that under current technology, 
Web publishers cannot “prevent [their site’s] content 
from entering any geographic community.” Reno III, 
31 F. Supp.2d at 484. As such, Web publishers cannot 
prevent Internet users in certain geographic locales 
from accessing their site; and in fact the Web publisher 
will not even know the geographic location of visitors to 
its site. See American Libraries, 969 F. Supp. at 171. 
Similarly, a Web publisher cannot modify the content of 
its site so as to restrict different geographic commun- 

animation and moving video stored in many other formats. . . . 

[Hyperlinks] allow information to be accessed and organized in 
very flexible ways, and allow individuals to locate and efficiently 
view related information even if the information is stored on 
numerous computers all around the world.” Reno III, 31 
F. Supp.2d at 483. 

12 People v. Barrows, 177 Misc.2d 712, 729, 677 N.Y.S.2d 672 
(N.Y. 1998) 

12a 

ities to access of only certain portions of their site. 
Thus, once published on the Web, existing technology 
does not permit the published material to be restricted 
to particular states or jurisdictions. 

D. Procedural History 

On October 22, 1998, the day after COPA was 
enacted, the American Civil Liberties Union (“ACLU”) 
brought the present action in the United States District 
Court for the Eastern District of Pennsylvania, chal- 
lenging COPA’s constitutionality and seeking to enjoin 
its enforcement. 

13 After granting a temporary re- 
straining order against enforcement of the law on 
November 20, 1998, the District Court held extensive 
evidentiary hearings which, on February 1, 1999, re- 
sulted in the entry of a preliminary injunction pre- 
venting the government from enforcing COPA. 

E. District Court’s Findings of Fact 

After five days of testimony, the District Court 
rendered sixty-seven separate findings of fact con- 
cerning the Internet, the Web, and COPA’s impact on 
speech activity in this relatively-new medium. See 
Reno III, 31 F. Supp.2d at 482-92. It bears noting that 
none of the parties dispute the District Court’s findings 
(including those describing the Internet and the Web), 
nor are any challenged as clearly erroneous. Thus, we 
accept these findings. 

13 Other parties joined the ACLU in asserting the unconsti- 
tutionality of COPA. For ease of reference, we will refer to all 
party-plaintiffs as “ACLU” throughout this opinion. 

13a 

The District Court first rendered findings concerning 
the physical medium known as the Internet, which it 
recognized consisted of many different methods of 
communication, only one of which is the World Wide 
Web. See Reno III, 31 F. Supp.2d at 482-83. It found 
that “[o]nce 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 geo- 
graphical community.” Id. 

The Court then made findings as to the costs and 
burdens COPA imposes on Web publishers and on the 
adults who seek access to sites covered by COPA. See 
Reno III, 31 F. Supp.2d at 482-492. As observed earlier, 
the statute provides for a limited number of defenses 
for Web publishers. See 47 U.S.C. § 231(c). 

14 The Court 
found that as a technological matter the only affir- 
mative defenses presently available are the imple- 
mentation of credit card or age verification systems 
because there is no currently functional digital certi- 
ficate or other reasonable means to verify age. See 
Reno III, 31 F. Supp.2d at 487. 

14 The statute provides: 

It is an affirmative defense to prosecution under this section 

that the defendant, in good faith, has restricted access by 
minors to material that is harmful to minors– 

(A) by requiring use of a credit card, debit account, adult 
access code, or adult personal identification number, 

(B) by accepting a digital certificate that verifies age; or 

(C) by any other reasonable measures that are feasible 
under available technology. 

See 47 U.S.C. § 231(c). 

14a 

With respect to the credit card option, the court 
found that the cost to Web publishers could range from 
$300 to “thousands of dollars” (exclusive of transaction 
fees incurred from each verification). Id. at 488. These 
costs were also exclusive, according to the court, of the 
labor and energy that would be required of the Web 
publisher to implement such a system. Id. This labor 
and energy would include reorganizing a particular 
Web site to ensure that material considered “harmful to 
minors” could only be accessed after passing through a 
credit card or other age verification system. See id. at 
490. With this in mind, the court found, for example, 
that textual material that consisted primarily of non- 
sexual material, but also included some content that 
was “harmful to minors” would also be subject to such 
age verification systems. See id. 

As for age verification systems, the District Court’s 
findings were more optimistic. The court found that a 
Web publisher “can sign up for free with Adult Check 
[one company providing such a service] to accept Adult 
Check PINs, and a Web site operator can earn com- 
missions of up to 50% to 60% of the fees generated by 
[their] users.” Id. at 489. The District Court also 
downplayed the cost (both in price and in energy) that 
would be incurred by the individual seeking to access 
“harmful to minors” material on the Web, finding that 
an Adult Check password could be easily purchased for 
only $16.95. See id. at 490. 

15 The same burdens con- 
cerning the reorganization of a particular Web site 
mentioned above would, of course, equally apply to a 

15 It now seems that those with a valid credit card who wish to 
acquire an adult PIN may do so without cost using a Web service 
such as www.freecheck.com. 

15a 

Web publisher that elected to utilize a PIN number for 
age verification. 

Either system, according to the District Court, would 
impose significant residual or indirect burdens upon 
Web publishers. Most importantly, both credit card 
and age verification systems require an individual 
seeking to access material otherwise permissible to 
adults to reveal personal statistics. Because many 
adults will choose not to reveal these personal details, 
those otherwise frequently visited Web sites will ex- 
perience “a loss of traffic.” Id. at 491. This loss of 
traffic, in turn, would inflict “economic harm” upon the 
particular Web site, thus increasing the burden that 
COPA imposes. Id. ¶ 61. 

Finally, the District Court considered whether volun- 
tary parental blocking or filtering software was a less 
restrictive means by which to achieve the government’s 
compelling objective of protecting minors from harmful 
material on the Web. The court found that “[s]uch 
technology may be downloaded and installed on a user’s 
home computer at a price of approximately $40.00.” Id. 
at 492 ¶ 65. The court, however, acknowledged that 
such software “is not perfect” as it is both over and 
under inclusive in the breadth of the material that it 
blocks and filters. See id. ¶ 66. 

16 

16 We question, however, the effectiveness of actions taken by 
a minor’s parent to supervise or block harmful material by using 
filtering software. We are of the view that such actions do not 
constitute government action, and we do not consider this to be a 
lesser restrictive means for the government to achieve its com- 
pelling interest. See also n. 24 supra. But see United States v. 
Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 
146 L.Ed.2d 865 (2000). 

16a 

F. District Court’s Conclusions of Law 

Initially, the government moved the District Court to 
dismiss the ACLU’s action insofar as the individuals 
and entities that it purported to represent were not in 
danger of prosecution under COPA and therefore 
lacked standing. In particular, the government asserted 
that the material placed on plaintiffs’ Web sites was not 
“harmful to minors” and that each of the plaintiffs were 
not “engaged in the business” of posting such material 
for “commercial purposes.” See supra note 13. 

The District Court interpreted COPA to impose 
liability on those Web publishers who profited from 
Web sites that contained some, even though not all, 
material that was harmful to minors. See Reno III, 31 
F. Supp.2d at 480. The court therefore concluded that 
the plaintiffs could reasonably fear prosecution because 
their Web sites contained material “that is sexual in 
nature.” Id. 

Having established plaintiffs’ standing 

17—an analysis 
with which we agree—the District Court began its 
First Amendment analysis by stating that insofar as 
COPA prohibits Web publishers from posting material 
that is “harmful to minors,” it constitutes a content- 
based restriction on speech that “is presumptively 
invalid and is subject to strict scrutiny.” Id. at 493 
(citing R.A.V. v. City of St. Paul, 505 U.S. 377, 381, 112 
S. Ct. 2538, 120 L.Ed.2d 305 (1992); Sable Comm. of 
Calif. v. FCC, 492 U.S. 115, 126, 109 S. Ct. 2829, 106 
L.Ed.2d 93 (1989)) See also United States v. Playboy 
Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 

17 See Reno III, 31 F. Supp.2d at 479. 

17a 

1878, 146 L.Ed.2d 865 (2000). Pursuant to this strict 
scrutiny analysis, the District Court held that COPA 
placed too large a burden on protected expression. In 
particular, the court found that the high economic costs 
that Web publishers would incur in implementing 
an age verification system would cause them to cease 
publishing such material, and further, that the difficulty 
in accurately shielding harmful material from minors 
would lead Web publishers to censor more material 
than necessary. See id. at 494-95. Moreover, the 
District Court believed that because of the need to use 
age verification systems, adults would be deterred from 
accessing these sites, and that the resulting loss of Web 
traffic would affect the Web publishers’ abilities to 
continue providing such communications in the future. 

The court then considered whether the government 
could establish that COPA was the least restrictive 
and most narrowly tailored means to achieve its 
compelling objective. See Reno III, 31 F. Supp.2d at 
496. The government contends that COPA meets this 
test because COPA does not “ ‘ban . . . the distri- 
bution or display of material harmful to minors [but] 
simply requires the sellers of such material to recast 
their message so that they are not readily available to 
children.’ “Appellant’s Brief at 27 (quoting H.R. REP. 
NO. 105-775 at 6 (1998)). The court concluded, however, 
that even if COPA were enforced, children would still 
be able to access numerous foreign Web sites 
containing harmful material; that some minors legiti- 
mately possess credit cards—thus defeating the effec- 
tiveness of this affirmative defense in restricting access 
by minors; that COPA prohibits a “sweeping category 
of form of content” instead of limiting its coverage to 
pictures, images and graphic image files—most often 

18a 

utilized by the adult industry as “teasers” Reno III, 31 
F. Supp.2d at 497; and that parental blocking and 
filtering technology would likely be as effective as 
COPA while imposing fewer constitutional burdens on 
free speech. Therefore, the District Court concluded 
that COPA was not the least restrictive means for the 
government to achieve its compelling objective of 
protecting minors from harmful material. Id. at 492. 
As a result, the court held that the ACLU had shown a 
substantial likelihood of succeeding on the merits in 
establishing COPA’s unconstitutionality. 

In concluding its analysis, the District Court held 
that losing First Amendment freedoms, even if only for 
a moment, constitutes irreparable harm. See id. (citing 
Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir. 1989)). And, 
in balancing the interests at stake for issuing a pre- 
liminary injunction, the District Court concluded that 
the scale tipped in favor of the ACLU, as the govern- 
ment lacks an interest in enforcing an unconstitutional 
law. See id. (citing ACLU v. Reno, 929 F. Supp. 824, 
849 (E.D. Pa. 1996)). Because the ACLU met its burden 
for a preliminary injunction, the District Court granted 
its petition. 

II. ANALYSIS 

In determining whether a preliminary injunction is 
warranted, we must consider: 

(1) whether the movant has shown a reasonable 
probability of success on the merits; (2) whether the 
movant will be irreparably harmed by denial of the 
relief; (3) whether granting preliminary relief will 
result in even greater harm to the nonmoving 

19a 

party; and (4) whether granting the preliminary 
relief will be in the public interest. 

Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 
(3d Cir. 1999) (citing ACLU v. Black Horse Pike 
Regional Bd. of Educ., 84 F.3d 1471, 1477 n. 2 (3d Cir. 
1996) (en banc)). We review a district court’s grant of a 
preliminary injunction according to a three-part stan- 
dard. Legal conclusions are reviewed de novo, findings 
of fact are reviewed for clear error, and the “ultimate 
decision to grant or deny the preliminary injunction” is 
reviewed for abuse of discretion. See Maldonado v. 
Houstoun, 157 F.3d 179, 183 (3d Cir. 1998), cert. denied, 
526 U.S. 1130, 119 S. Ct. 1802, 143 L.Ed.2d 1007 (1999). 

A. Reasonable probability of success on the merits 

We begin our analysis by considering what, for this 
case, is the most significant prong of the preliminary 
injunction test—whether the ACLU met its burden of 
establishing a reasonable probability of succeeding on 
the merits in proving that COPA trenches upon the 
First Amendment to the United States Constitution. 
Initially, we note that the District Court correctly 
determined that as a content-based restriction on 
speech, COPA is “both presumptively invalid and sub- 
ject to strict scrutiny analysis.” See Reno III, 31 F. 
Supp.2d at 493. As in all areas of constitutional strict 
scrutiny jurisprudence, the government must establish 
that the challenged statute is narrowly tailored to meet 
a compelling state interest, and that it seeks to protect 
its interest in a manner that is the least restrictive of 
protected speech. See, e.g., Schaumburg v. Citizens for 
a Better Environment, 444 U.S. 620, 637, 100 S. Ct. 826, 
63 L.Ed.2d 73 (1980); Sable Comm of Calif. v. FCC, 492 

20a 

18 These principles 
have been emphasized again in the Supreme Court’s 
most recent opinion, United States v. Playboy Enter- 
tainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 146 
L.Ed.2d 865 (2000), where the Court, concerned with 
the “bleeding” of cable transmissions, held § 505 of the 
Telecommunications Act of 1996 unconstitutional as 
violative of the First Amendment. 

It is undisputed that the government has a com- 
pelling interest in protecting children from material 
that is harmful to them, even if not obscene by adult 
standards. See Reno III, 31 F. Supp.2d at 495 (citing 

18 The Supreme Court has recognized that each medium of 
expression may permit special justifications for regulation. See 
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 
S. Ct. 1239, 43 L.Ed.2d 448 (1975); Red Lion Broadcasting Co. v. 
FCC, 395 U.S. 367, 89 S. Ct. 1794, 23 L.Ed.2d 371 (1969); FCC v. 
Pacifica Foundation, 438 U.S. 726, 98 S. Ct. 3026, 57 L.Ed.2d 1073 
(1978). For example, broadcast media, due to the history of 
extensive government regulation, its “invasive” nature, and the 
scarcity of available frequencies at its inception justified 
heightened regulation. See, e.g., Turner Broadcasting System, Inc. 

v. FCC, 512 U.S. 622, 637-38, 114 S. Ct. 2445, 129 L.Ed.2d 497 
(1994); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 
128, 109 S. Ct. 2829, 106 L.Ed.2d 93 (1989). See also United States 

v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 
1878, 146 L.Ed.2d 865 (2000). However, the Supreme Court has 
also recognized that these same elements, which justified 
heightened regulation of the broadcast medium, do not exist in 
cyberspace. See Reno v. ACLU, 521 U.S. 844, 868, 117 S. Ct. 2329, 
138 L.Ed.2d 874 (1997). The Internet has not been historically 
subject to regulation. Nor has the Internet suffered from a 
scarcity of available frequencies. See id. at 869-70, 117 S. Ct. 2329. 
Therefore, the Supreme Court held that there is “no basis for 
qualifying the level of First Amendment scrutiny that should be 
applied to this [cyberspace] medium.” Id. at 870, 117 S. Ct. 2329. 

U.S. 115, 126, 109 S. Ct. 2829 (1989). 

21a 

Sable, 492 U.S. at 126, 109 S. Ct. 2829 (1989); Ginsberg 

v. New York, 390 U.S. 629, 639-40, 88 S. Ct. 1274, 20 
L.Ed.2d 195 (1968)). At issue is whether, in achieving 
this compelling objective, Congress has articulated a 
constitutionally permissible means to achieve its 
objective without curtailing the protected free speech 
rights of adults. See Reno III, 31 F. Supp.2d at 492 
(citing Sable, 492 U.S. at 127, 109 S. Ct. 2829; Butler v. 
Michigan, 352 U.S. 380, 383, 77 S. Ct. 524, 1 L.Ed.2d 
412 (1957)). As we have observed, the District Court 
found that it had not—holding that COPA was not 
likely to succeed in surviving strict scrutiny analysis. 

We base our particular determination of COPA’s 
likely unconstitutionality, however, on COPA’s reliance 
on “contemporary community standards” in the context 
of the electronic medium of the Web to identify mate- 
rial that is harmful to minors. The overbreadth of 
COPA’s definition of “harmful to minors” applying a 
“contemporary community standards” clause—al- 
though virtually ignored by the parties and the amicus 
in their respective briefs but raised by us at oral 
argument—so concerns us that we are persuaded that 
this aspect of COPA, without reference to its other 
provisions, must lead inexorably to a holding of a likeli- 
hood of unconstitutionality of the entire COPA statute. 
Hence we base our opinion entirely on the basis of the 
likely unconstitutionality of this clause, even though the 
District Court relied on numerous other grounds. 

19 

19 As a result, we do not find it necessary to address the 
District Court’s analysis of the definition of “commercial pur- 
poses”; whether the breadth of the forms of content covered 
by COPA could have been more narrowly tailored; whether the 
affirmative defenses impose too great a burden on Web publishers 
or whether those affirmative defenses should have been included 

22a 

As previously noted, in passing COPA, Congress 
attempted to resolve all of the problems raised by the 
Supreme Court in striking down the CDA as uncon- 
stitutional. One concern noted by the Supreme Court 
was that, as a part of the wholly unprecedented broad 
coverage of the CDA, “the ‘community standards’ 
criterion as applied to the Internet means that any 
communication available to a nationwide audience will 
be judged by the standards of the community most 
likely to be offended by the message.” Reno II, 521 
U.S. at 877-78, 117 S. Ct. 2329. We are not persuaded 
that the Supreme Court’s concern with respect to the 
“community standards” criterion has been sufficiently 
remedied by Congress in COPA. 

Previously, in addressing the mailing of unsolicited 
sexually explicit material in violation of a California 
obscenity statute, the Supreme Court held that the 
fact-finder must determine whether “ ‘the average per- 
son, applying contemporary community standards’ 
would find the work taken as a whole, [to appeal] to the 
prurient interest.” Miller v. California, 413 U.S. 15, 24, 

as elements of the crime itself; whether COPA’s inclusion of 
criminal as well as civil penalties was excessive; whether COPA is 
designed to include communications made in chat rooms, discussion 
groups and links to other Web sites; whether the government is 
entitled to so restrict communications when children will continue 
to be able to access foreign Web sites and other sources of material 
that is harmful to them; what taken “as a whole” should mean in 
the context of the Web and the Internet; or whether the statute’s 
failure to distinguish between material that is harmful to a six year 
old versus a sixteen year old is problematic. 

We recognize that in focusing on the “contemporary community 
standards” aspect of COPA we are affirming the District Court’s 
ruling on a ground other than that emphasized by the District 
Court. See PAAC v. Rizzo, 502 F.2d 306, 308 n. 1 (1974). 

23a 

93 S. Ct. 2607, 37 L.Ed.2d 419 (1973) (quoting Kois v. 
Wisconsin, 408 U.S. 229, 230, 92 S. Ct. 2245, 33 L.Ed.2d 
312 (1972)). In response to the Supreme Court’s 
criticism of the CDA, Congress incorporated into COPA 

this Miller test, explaining that in so doing COPA now 
“conforms to the standards identified in Ginsberg, as 
modified by the Supreme Court in Miller v. California, 
413 U.S. 15, 93 S. Ct. 2607, 37 L.Ed.2d 419 (1973).” H.R. 
REP. NO. 105-775 at 13 (1998); 47 U.S.C. § 231(e)(6)(A). 
Even in so doing, Congress remained cognizant of the 
fact that “the application of community standards in the 
context of the Web is controversial.” H.R. REP. NO.. 

107-775, at 28. Nevertheless, in defending the consti- 
tutionality of COPA’s use of the Miller test, the govern- 
ment insists that “there is nothing dispositive about the 
fact that [in COPA] commercial distribution of such 
[harmful] materials occurs through an online, rather 
than a brick and mortar outlet.” See Reply Brief at 18 

n. 3. 

Despite the government’s assertion, “[e]ach medium 
of expression ‘must be assessed for First Amendment 
purposes by standards suited to it, for each may 
present its own problems.’ ” Reno III, 31 F. Supp.2d at 
495 (quoting Southeastern Promotions, Ltd. v. Conrad, 
420 U.S. 546, 557, 95 S. Ct. 1239, 43 L.Ed.2d 448 (1975)). 
See also United States v. Playboy Entertainment 
Group, Inc., 529 U.S. 803, at ——, 120 S. Ct. 1878, 1887, 
146 L.Ed.2d 865, at _____ (2000). In considering “the 
unique factors that affect communication in the new and 
technology-laden medium of the Web,” we are con- 
vinced that there are crucial differences between a 
“brick and mortar outlet” and the online Web that 
dramatically affect a First Amendment analysis. Id. 

24a 

Unlike a “brick and mortar outlet” with a specific 
geographic locale, and unlike the voluntary physical 
mailing of material from one geographic location to 
another, as in Miller, the uncontroverted facts indicate 
that the Web is not geographically constrained. See 
Reno III, 31 F. Supp.2d at 482-92; American Libraries, 
969 F. Supp. at 169 (“geography, however, is a virtually 
meaningless construct on the Internet”). Indeed, and of 
extreme significance, is the fact, as found by the 
District Court, that Web publishers are without any 
means to limit access to their sites based on the geo- 
graphic location of particular Internet users. As soon 
as information is published on a Web site, it is acces- 
sible to all other Web visitors. See American Libraries, 
969 F. Supp. at 166; Reno III, 31 F. Supp.2d at 483. 
Current technology prevents Web publishers from 
circumventing particular jurisdictions or limiting their 
site’s content “from entering any [specific] geographic 
community.” Reno III, 31 F. Supp.2d at 484. This key 
difference necessarily affects our analysis in attempting 
to define what contemporary community standards 
should or could mean in a medium without geographic 
boundaries. 

In expressing its concern over the wholly unpre- 
cedented broad coverage of the CDA’s scope, the 
Supreme Court has already noted that because of the 
peculiar geography-free nature of cyberspace, a “com- 
munity standards” test would essentially require every 
Web communication to abide by the most restrictive 
community’s standards. See Reno II, 521 U.S. at 877- 
78, 117 S. Ct. 2329. Similarly, to 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 

25a 

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 
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 “harm- 
ful” to them in their respective geographic communi- 
ties. 

The government argues that subjecting Web pub- 
lishers to varying community standards is not consti- 
tutionally problematic or, for that matter, unusual. The 
government notes that there are numerous cases in 
which the courts have already subjected the same 
conduct to varying community standards, depending on 
the community in which the conduct occurred. For 
example, the Supreme Court has stated that “distri- 
butors of allegedly obscene materials may be subjected 
to varying community standards in the various federal 
judicial districts into which they transmit the material 
[but that] does not render a federal statute unconsti- 
tutional because of the failure of the application of 
uniform national standards of obscenity.” Hamling v. 
United States, 418 U.S. 87, 106, 94 S. Ct. 2887, 41 
L.Ed.2d 590 (1974). Similarly, the government cites to 
the “dial-a-porn” cases in which the Supreme Court has 
held that even if the “audience is comprised of different 
communities with different local standards” the com- 
pany providing the obscene material “ultimately bears 
the burden of complying with the prohibition on 
obscene messages” under each community’s respective 

26a 

standard. Sable Comm. of California v. F.C.C., 492 
U.S. 115, 125-26, 109 S. Ct. 2829, 106 L.Ed.2d 93 (1989). 

These cases, however, are easily distinguished from 
the present case. In each of those cases, the defendants 
had the ability to control the distribution of contro- 
versial material with respect to the geographic com- 
munities into which they released it. Therefore, the 
defendants could limit their exposure to liability by 
avoiding those communities with particularly restric- 
tive standards, while continuing to provide the 
controversial material in more liberal-minded communi- 
ties. For example, the pornographer in Hamling could 
have chosen not to mail unsolicited sexually explicit 
material to certain communities while continuing to 
mail them to others. Similarly, the telephone porno- 
graphers (“dial-a-porn”) in Sable could have screened 
their incoming calls and then only accepted a call if its 
point of origination was from a community with stan- 
dards of decency that were not offended by the content 
of their pornographic telephone messages. 

20 

By contrast, Web publishers have no such compar- 
able control. Web publishers cannot restrict access to 
their site based on the geographic locale of the Internet 
user visiting their site. In fact, “an Internet user 
cannot foreclose access to . . . work from certain 
states or send differing versions of . . . com- 

20 The Sable court found that: “Sable is free to tailor its mes- 
sages, on a selective basis, if it so chooses, to the communities it 
chooses to serve. While Sable may be forced to incur some costs in 
developing and implementing a system for screening the locale of 
incoming calls, there is no constitutional impediment to enacting a 
law that may imposes such costs on a medium electing to provide 
these messages.” Sable 492 U.S. at 125-26, 109 S. Ct. 2829. 

27a 

munication[s] to different jurisdictions . . . The Inter- 
net user has no ability to bypass any particular state.” 
American Libraries Ass’n v. Pataki, 969 F. Supp. 160 
(S.D.N.Y. 1997). As a result, unlike telephone or postal 
mail pornographers, Web publishers of material that 
may be harmful to minors must “comply with the regu- 
lation imposed by the State with the most stringent 
standard or [entirely] forego Internet communication of 
the message that might or might not subject [the 
publisher] to prosecution.” Id. 

To minimize this distinction between Web publishers 
and all other forms of communication that contain 
material that is harmful to minors, the government 
cites to one Sixth Circuit case—presently the only case 
in which a court has applied a “community standards” 
test in the context of the electronic medium. See 
United States v. Thomas, 74 F.3d 701 (6th Cir. 1996). 
The Thomas court determined that whether the 
material on the defendant’s electronic bulletin board is 
harmful must be judged by the standards of each 
individual community wherein the disputed material 
was received, even if the standards in each of the 
recipient communities varied one from the next, and 
even if the material was acceptable in the community 
from which it was sent. See id. at 711. Despite the 
“electronic medium” in which electronic bulletin boards 
are found, Thomas is inapposite inasmuch as electronic 
bulletin boards, just as telephones, regular mail and 
other brick and mortar outlets, are very different 
creatures from that of the Web as a whole. Thomas 
itself recognized this difference, and by limiting its 
holding accordingly, completely undercuts the govern- 
ment’s argument, stating explicitly that: 

28a 

Defendants and Amicus Curiae appearing on their 
behalf argue that the computer technology used 
here requires a new definition of community, i.e., 
one that is based on the broad-ranging connections 
among people in cyberspace rather than the geo- 
graphic locale of the federal judicial district of the 
criminal trial. . . . Therefore, they contend . . . 

[bulletin board publishers] will be forced to censor 
their material so as not to run afoul of the standards 
of the community with the most restrictive stan- 
dards. Defendants’ First Amendment issue, how- 
ever, is not implicated by the facts of this case. This 
is not a situation where the bulletin board operator 
had no knowledge or control over the jurisdictions 
where materials were distributed for downloading 
or printing. Access to the Defendants’ [bulletin 
board] was limited. Membership was necessary and 
applications were submitted and screened before 
passwords were issued and materials were distri- 
buted. Thus, Defendants had in place methods to 
limit user access in jurisdictions where the risk of a 
finding of obscenity was greater than in California 

. . . . If Defendants did not wish to subject 

themselves to liability in jurisdictions with less 
tolerant standards for determining obscenity, they 
could have refused to give passwords to members in 
those districts, thus precluding the risk of liability. 

. . . . Thus, under the facts of this case, there is not 

need for this court to adopt a new definition of 
“community’ for use in obscenity prosecutions in- 
volving electronic bulletin boards. This court’s 
decision is guided by one of the cardinal rules 
governing the federal courts, i.e., never reach con- 
stitutional questions not squarely presented by the 
facts of a case.” Id. at 711-12. 

29a 

Thus, it is clear that Thomas fails to support the 
government’s position. Indeed, no federal court has yet 
ruled on whether the Web/Internet may be consti- 
tutionally regulated in light of differing community 
standards. 

Our concern with COPA’s adoption of Miller’s 
“contemporary community standards” test by which to 
determine whether material is harmful to minors is 
with respect to its overbreadth in the context of the 
Web medium. Because no technology currently exists 
by which Web publishers may avoid liability, such 
publishers would necessarily be compelled to abide by 
the “standards of the community most likely to be 
offended by the message” Reno II, 521 U.S. at 877-78, 
117 S. Ct. 2329, even if the same material would not 
have been deemed harmful to minors in all other 
communities. Moreover, by restricting their publi- 
cations to meet the more stringent standards of less 
liberal communities, adults whose constitutional rights 
permit them to view such materials would be uncon- 
stitutionally deprived of those rights. Thus, this result 
imposes an overreaching burden and restriction on 
constitutionally protected speech. 

21 

21 Even if we were to overlook the unconstitutional over- 
breadth of the COPA “contemporary community standards” test 
and if COPA were to be deemed effective, it still would not eli- 
minate much of the harmful material which a minor could access. 
For example, minors could still access harmful material published 
by non-commercial Web publishers, and by foreign Web pub- 
lishers. Thus, for example, materials “harmful to minors” but 
generated in foreign communities with contemporary community 
standards far more liberal than those of any state in the United 
States may, nevertheless, remain available and be exposed to 

30a 

We recognize that invalidating a statute because it is 
overbroad is “strong medicine.” Broadrick v. Okla- 
homa, 413 U.S. 601, 613, 93 S. Ct. 2908, 37 L.Ed.2d 830 
(1973). As such, before concluding that a statute is 
unconstitutionally overbroad, we seek to determine if 
the statute is “ ‘readily susceptible’ to a narrowing 
construction that would make it constitutional . . . 
[because courts] will not rewrite a . . . law to conform 
it to constitutional requirements.” Virginia v. Ameri- 
can Booksellers’ Ass’n, 484 U.S. 383, 397, 108 S. Ct. 636, 
98 L.Ed.2d 782 (1988) (quoting Erznoznik v. City of 
Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L.Ed.2d 
125 (1975)). See also Broadrick, 413 U.S. at 613, 93 
S. Ct. 2908; Forsyth County v. Nationalist Movement, 
505 U.S. 123, 130, 112 S. Ct. 2395, 120 L.Ed.2d 101 
(1992); Shea, 930 F. Supp. at 939. 

Two possible ways to limit the interpretation of 
COPA are (a) assigning a narrow meaning to the 
language of the statute itself, or (b) deleting that 
portion of the statute that is unconstitutional, while 
preserving the remainder of the statute intact. See e.g. 
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502, 
105 S. Ct. 2794, 86 L.Ed.2d 394 (1985); Shea, 930 
F. Supp. at 939. We therefore turn our attention to 
whether either limiting construction is feasible here. 

The government, in attempting to make use of the 
first of these salvaging mechanisms, suggests that we 
should interpret narrowly the “contemporary com- 
munity standards” language in COPA as an “adult” 
rather than as a “geographic” standard. The House 

children in the United States by means of the Web/Internet, 
despite COPA’s restrictions. 

31a 

Report itself suggests this construction to sidestep 
the potential constitutional problems raised by the 
Supreme Court in interpreting the CDA’s use of a 
“community standards” phrase. Congress explained: 

“The committee intends for the definition of 
material harmful to minors to parallel the Ginsberg 
and Miller definitions of obscenity and harmful to 
minors. . . . In essence, the Committee intends to 

adopt the ‘variable obscenity’ standard for minors. 
The Committee recognizes that the applicability of 
community standards in the context of the Web is 
controversial, but understands it as an ‘adult’ stan- 
dard, rather than a ‘geographic’ standard, and one 
that is reasonably constant among adults in America 
with respect to what is suitable for minors.” . . . . 

Thus, the person posting the material is engaged in 
interstate commerce and is subjecting himself to the 
jurisdiction of all communities in a manner similar to 
the way obscenity laws apply today. 

H.R. REP. NO. 105-775 at 28 (1998). Congress reiterated 
this very position in its amicus brief stating: “COPA 
adopted a non-geographic, adult age community stan- 
dard for judging the prurience and offensiveness 
prongs of the Harmful to Minors test.” Brief of Mem- 
bers of Congress as Amici Curiae, at 16. 

Despite the government’s effort to salvage this 
clause of COPA from unconstitutionality, we have 
before us no evidence to suggest that adults everywhere 
in America would share the same standards for deter- 
mining what is harmful to minors. To the contrary, it is 
significant to us that throughout case law, community 
standards have always been interpreted as a geo- 
graphic standard without uniformity. See, e.g., Ameri- 

32a 

can Libraries Ass’n v. Pataki, 969 F. Supp. 160, 182-83 
(S.D.N.Y. 1997) (“Courts have long recognized, how- 
ever, that there is no single ‘prevailing community 
standard’ in the United States. Thus, even were all 50 
states to enact laws that were verbatim copies of the 
New York [obscenity] Act, Internet users would still be 
subject to discordant responsibilities.”). 

In fact, Miller, the very case from which the govern- 
ment derives its “community standards” concept, has 
made clear that community standards are to be 
construed in a localized geographic context. “People in 
different States vary in their tastes and attitudes and 
this diversity is not to be strangled by the absolutism of 
imposed uniformity.” Miller 413 U.S. at 33, 93 S. Ct. 
2607. Even more directly, the Supreme Court stated in 
Miller that “our nation is simply too big and too diverse 
for this Court to reasonably expect that such standards 
[of what is patently offensive] could be articulated 
for all 50 states in a single formulation. . . . To require 

a State to structure obscenity proceedings around 
evidence of a national ‘community standard’ would be 
an exercise in futility.” Id. at 30, 93 S. Ct. 2607. We 
therefore conclude that the interpretation of “contem- 
porary community standards” is not “readily sus- 
ceptible” to a narrowing construction of “adult” rather 
than “geographic” standard. 

With respect to the second salvaging mechanism, it is 
an “ ‘elementary principle that the same statute may be 
in part constitutional and in part unconstitutional, and 
that if the parts are wholly independent of each other, 
that which is constitutional may stand while that which 
is unconstitutional will be rejected’ ” 

Brockett v. 
Spokane Arcades, Inc., 472 U.S. 491, 502, 105 S. Ct. 

33a 

2794, 86 L.Ed.2d 394 (1985) (quoting Allen v. Louisi- 
ana, 103 U.S. 80, 83-84, 26 L.Ed. 318 (1880)). As a re- 
sult, if it is possible for a court to identify a particular 
part of the statute that is unconstitutional, and by 
striking only that language the court could leave the 
remainder of the statute intact and within the intent of 
Congress, courts should do so. See Alaska Airlines, 
Inc. v. Brock, 480 U.S. 678, 684-85, 107 S. Ct. 1476, 94 
L.Ed.2d 661 (1987). 

Here, however, striking “contemporary community 
standards” from COPA is not likely to succeed in sal- 
vaging COPA’s constitutionality as this standard is an 
integral part of the statute, permeating and influencing 
the whole of the statute. We see no means by which to 
excise those “unconstitutional” elements of the statute 
from those that are constitutional (assuming for the 
moment, without deciding, that the remaining clauses 
of COPA are held to be constitutional). This is parti- 
cularly so in a preliminary injunction context when we 
are convinced that the very test or standard that COPA 

has established to determine what is harmful to minors 
is more likely than not to be held unconstitutional. See 
Brockett, 472 U.S. at 504-05, 105 S. Ct. 2794. 

Our foregoing discussion that under either approach 
—of narrowing construction or deleting an unconsti- 
tutional element—COPA is not “readily susceptible” to 
a construction that would make it constitutional. We 
agree with the Second Circuit that “[t]he State may not 
regulate at all if it turns out that even the least re- 
strictive means of regulation is still unreasonable when 
its limitations on freedom of speech are balanced 
against the benefits gained from those limitations.” 
Carlin Communications, Inc. v. FCC, 837 F.2d 546, 555 

34a 

(2d Cir. 1988). As regulation under existing technology 
is unreasonable here, we conclude that with respect to 
this first prong of our preliminary injunction analysis, it 
is more likely than not that COPA will be found uncon- 
stitutional on the merits. 

22 

22 Although our concern here has been with the overbreadth of 
the “contemporary community standards” clause, we recognize 
that if we were to address that portion of COPA which speaks 
to communications made for commercial purposes, 47 U.S.C. 
§ 231(e)(2)(A), the Supreme Court has taught that “[f]or the 
purposes of applying the overbreadth doctrine . . . it remains 
relevant to distinguish between commercial and noncommercial 
speech.” Village of Schaumburg v. Citizens for a Better Envir- 
onment, 444 U.S. 620, 632 n. 7, 100 S. Ct. 826, 63 L.Ed.2d 73 (1980). 
For instance, it has declined to apply the overbreadth doctrine to 

statutes regulating commercial advertising: 

[T]he justification for the application of overbreadth analysis 

applies weakly, if at all, in the ordinary commercial context 

. . . [T]here are “commonsense differences” between com- 
mercial speech and other varieties. Since advertising is linked 
to commercial well-being, it seems unlikely that such speech is 
particularly susceptible to being crushed by overbroad regu- 
lation. Moreover, concerns for uncertainty in determining the 
scope of protection are reduced . . . 

Bates v. State Bar of Arizona, 433 U.S. 350, 380-81, 97 S. Ct. 2691, 
53 L.Ed.2d 810 (1977) (citations omitted). See also Central Hud- 
son Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 
U.S. 557, 564 n. 6, 100 S. Ct. 2343, 65 L.Ed.2d 341 (1980) 
(“[C]ommercial speech, the offspring of economic self-interest, is a 
hardy breed of expression that is not ‘particularly susceptible to 
being crushed by overbroad regulation.’ ”). 

However, although COPA regulates the commercial content of 
the Web, it amounts to neither a restriction on commercial 
advertising, nor a regulation of activity occurring “in the ordinary 
commercial context.” Bates, 433 U.S. at 380-81, 97 S. Ct. 2691. As 
we have noted, the Web is a new type of medium which allows the 
average person with relatively little capital investment to place 
content on it for a commercial purpose. The speech such Web sites 

35a 

Our holding in no way ignores or questions the 
general applicability of the holding in Miller with re- 
spect to “contemporary community standards.” We 
remain satisfied that Miller’s “community standards” 
test continues to be a useful and viable tool in contexts 
other than the Internet and the Web under present 
technology. Miller itself was designed to address the 
mailing of unsolicited sexually explicit material in 
violation of California law, where a publisher could con- 
trol the community receiving the publication. Miller, 
however, has no applicability to the Internet and the 
Web, where Web publishers are currently without the 
ability to control the geographic scope of the recipients 
of their communications. See Reno II, 521 U.S. at 889, 
117 S. Ct. 2329 (O’Connor, J., concurring in judgment in 
part and dissenting in part) (noting that the “twin 

provide is in far greater danger of being stifled by government 
regulation than the commercial advertising at issue in cases such 
as Bates and Central Hudson Gas. 

As the Supreme Court has also made clear, the benefits gained 
by the challenged statute must also outweigh the burden imposed 
on commercial speech. See Elrod v. Burns, 427 U.S. 347, 363, 96 
S. Ct. 2673, 49 L.Ed.2d 547 (1976); Greater New Orleans Broad. 
Ass’n, Inc. v. United States, 527 U.S. 173, 188, 119 S. Ct. 1923, 144 
L.Ed.2d 161 (1999) (in regulating commercial speech, “the 
regulation may not be sustained if it provides only ineffective or 
remote support for the government’s purpose.”). The Supreme 
Court has repeatedly stated that the free speech rights of adults 
may not be reduced to allow them to read only what is acceptable 
for children. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 
74-75, 103 S. Ct. 2875, 77 L.Ed.2d 469 (1983) (“The level of 
discourse reaching a mailbox simply cannot be limited to that 
which would be suitable for a sandbox.”). See also Sable, 492 U.S. 
at 127, 109 S. Ct. 2829. Therefore, there is no inconsistency 
between our position that COPA is overbroad, and the line of 
authority refusing to apply overbreadth analysis to certain types 
of commercial speech. 

36a 

characteristics of geography and identity” differentiate 
the world of Ginsberg [and Miller] from that of the 
Internet.). 

B. Irreparable Harm By Denial of Relief 

The second prong of our preliminary injunction 
analysis requires us to consider “whether the movant 
will be irreparably harmed by denial of the relief.” 
Allegheny Energy, Inc. v. DQE, Inc. 171 F.3d 153, 158 
(3d Cir. 1999). Generally, “[i]n a First Amendment 
challenge, a plaintiff who meets the first prong of the 
test for a preliminary injunction will almost certainly 
meet the second, since irreparable injury normally 
arises out of the deprivation of speech rights.” Reno I, 
929 F. Supp. 824 at 866. This case is no exception. 

If a preliminary injunction were not to issue, COPA- 
affected Web publishers would most assuredly suffer 
irreparable harm—the curtailment of their 
constitutionally protected right to free speech. As the 
Supreme Court has clearly stated, “the loss of First 
Amendment freedoms, for even minimal periods of 
time, unquestionably constitutes irreparable injury.” 
Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 
L.Ed.2d 547 (1976). We, therefore, conclude that this 
element of our preliminary injunction analysis has been 
satisfied. 

C. Injury Outweighs Harm 

The third prong of our preliminary injunction analy- 
sis requires us to consider “whether granting pre- 
liminary relief will result in even greater harm to the 
nonmoving party.” Allegheny Inc. v. DQE, Inc., 171 
F.3d 153, 158 (3d Cir. 1999). We are convinced that in 

37a 

balancing the parties’ respective interests, COPA’s 

threatened constraint on constitutionally protected free 
speech far outweighs the damage that would be im- 
posed by our failure to affirm this preliminary injunc- 
tion. We are also aware that without a preliminary 
injunction, Web publishers subject to COPA would 
immediately be required to censor constitutionally pro- 
tected speech for adults, or incur substantial financial 
costs to implement COPA’s affirmative defenses. 

23 

Therefore, we affirm the District Court’s holding that 
plaintiffs sufficiently met their burden in establishing 
this third prong of the preliminary injunction analysis. 

D. Public Interest 

As the fourth and final element of our preliminary 
injunction analysis, we consider “whether granting the 
preliminary relief will be in the public interest.” 
Allegheny Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 
1999). Curtailing constitutionally protected speech will 
not advance the public interest, and “neither the Gov- 
ernment nor the public generally can claim an interest 
in the enforcement of an unconstitutional law.” Reno I, 
929 F. Supp. at 866. Having met this final element of 
our preliminary injunction analysis, the District Court 
properly granted the ACLU’s petition for a preliminary 
injunction. 

23 These costs with respect to Web publishers and to those who 
desire access to those Web sites were enumerated by the District 
Court in its findings of fact. 

38a 

III. CONCLUSION 

Due to current technological limitations, COPA— 

Congress’ laudatory attempt to achieve its compelling 
objective of protecting minors from harmful material on 
the World Wide Web—is more likely than not to be 
found unconstitutional as overbroad on the merits. 

24 

Because the ACLU has met its burden in establishing 
all four of the necessary elements to obtain a pre- 
liminary injunction, and the District Court properly 
exercised its discretion in issuing the preliminary 
injunction, we will affirm the District Court’s order. 

In so affirming, we approvingly reiterate the senti- 
ments aptly noted by the District Court: “sometimes 
we must make decisions that we do not like. We make 
them because they are right, right in the sense that the 
law and the Constitution, as we see them, compel the 
result.” Reno III, 31 F. Supp.2d at 498. 

25 We also 
express our confidence and firm conviction that devel- 
oping technology will soon render the “community 
standards” challenge moot, thereby making congres- 

24 Although much attention at the District Court level was 
focused on the availability, virtues and effectiveness of voluntary 
blocking or filtering software that can enable parents to limit the 
harmful material to which their children may otherwise be 
exposed, the parental hand should not be looked to as a substitute 
for a congressional mandate. See also n. 16 supra. 

25 “When sensitive matters of freedom of speech collide with 
images of children’s vulnerability, and are framed in terms of the 
battle between good and evil, even well intentioned people can lose 
sight of fundamental constitutional principles.” Catherine J. Ross, 
Anything Goes: Examining the State’s Interest in Protecting 
Children from Controversial Speech, 53 VAND. L. REV. 427, 521 
(2000). 

39a 

sional regulation to protect minors from harmful 
material on the Web constitutionally practicable. In- 
deed, in the context of dealing with technology to 
prevent the “bleeding” of cable transmissions, the 
Supreme Court in United States v. Playboy Enter- 
tainment Group, Inc., 529 U.S. 803 at ——, 120 S. Ct. 
1878, 1883, 146 L.Ed.2d 865 at _____ (2000) recognized, 
as do we, that “technology may one day provide 
another solution.” 

Therefore, we will affirm the District Court’s order 
dated February 1, 1999, issuing a preliminary injunc- 
tion. 

40a 

APPENDIX B 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF PENNSYLVANIA 

No. CIV. A. 98-5591 

AMERICAN CIVIL LIBERTIES UNION, ET AL. 

v. 

JANET RENO, IN HER OFFICIAL CAPACITY 
AS ATTORNEY GENERAL OF THE UNITED STATES 

[Feb. 1, 1999] 

MEMORANDUM 

REED, District Judge. 

The First Amendment to the United States Con- 
stitution provides that “Congress shall make no law 

. . . abridging the freedom of speech.” Although there 
is no complete consensus on the issue, most courts and 
commentators theorize that the importance of pro- 
tecting freedom of speech is to foster the marketplace 
of ideas. If speech, even unconventional speech that 
some find lacking in substance or offensive, is allowed 
to compete unrestricted in the marketplace of ideas, 
truth will be discovered. Indeed, the First Amendment 
was designed to prevent the majority, through acts of 

(40a) 

41a 

Congress, from silencing those who would express 
unpopular or unconventional views. 

Despite the protection provided by the First Amend- 
ment, unconventional speakers are often limited in their 
ability to promote such speech in the marketplace by 
the costs or logistics of reaching the masses, hence, the 
adage that freedom of the press is limited to those who 
own one. In the medium of cyberspace, however, 
anyone can build a soap box out of web pages and speak 
her mind in the virtual village green to an audience 
larger and more diverse than any the Framers could 
have imagined. In many respects, unconventional mes- 
sages compete equally with the speech of mainstream 
speakers in the marketplace of ideas that is the Inter- 
net, certainly more than in most other media. 

But with freedom come consequences. Many of the 
same characteristics which make cyberspace ideal for 
First Amendment expression—ease of participation 
and diversity of content and speakers—make it a poten- 
tially harmful media for children. A child with minimal 
knowledge of a computer, the ability to operate a 
browser, and the skill to type a few simple words may 
be able to access sexual images and content over the 
World Wide Web. For example, typing the word “doll- 
house” or “toys” into a typical Web search engine will 
produce a page of links, some of which connect to what 
would be considered by many to be pornographic Web 
sites. These Web sites offer “teasers,” free sexually 
explicit images and animated graphic image files de- 
signed to entice a user to pay a fee to browse the whole 
site. 

Intending to address the problem of children’s access 
to these teasers, Congress passed the Child Online 

42a 

Protection Act (“COPA”), which was to go into effect on 
November 29, 1998. On October 22, 1998, the plaintiffs, 
including, among others, Web site operators and con- 
tent providers, filed this lawsuit challenging the consti- 
tutionality of COPA under the First and Fifth Amend- 
ments and seeking injunctive relief from its enforce- 
ment. Two diametric interests—the constitutional 
right of freedom of speech and the interest of Congress, 
and indeed society, in protecting children from harmful 
materials—are in tension in this lawsuit. 

This is not the first attempt of Congress to regulate 
content on the Internet. Congress passed the Com- 
munications Decency Act of 1996 (“CDA”) which pur- 
ported to regulate the access of minors to “indecent” 
and “patently offensive” speech on the Internet. The 
CDA was struck down by the Supreme Court in Reno 

v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 138 L.Ed.2d 874 
(1997) (“Reno I”) as violative of the First Amendment. 
COPA represents congressional efforts to remedy the 
constitutional defects in the CDA. 

Plaintiffs attack COPA on several grounds: (1) that it 
is invalid on its face and as applied to them under the 
First Amendment for burdening speech that is con- 
stitutionally protected for adults, (2) that it is invalid on 
its face for violating the First Amendment rights of 
minors, and (3) that it is unconstitutionally vague under 
the First and Fifth Amendments. The parties pre- 
sented evidence and argument on the motion of plain- 
tiffs for a temporary restraining order on November 19, 
1998. This Court entered a temporary restraining 
order on November 20, 1998, enjoining the enforcement 
of COPA until December 4, 1998. (Document Nos. 29 
and 30). The defendant agreed to extend the duration 

43a 

of the TRO through February 1, 1999. (Document No. 

34). The parties conducted accelerated discovery there- 
after. While the parties and the Court considered con- 
solidating the preliminary injunction hearing with a 
trial on the merits, the Court, upon due consideration of 
the arguments of the parties, ultimately decided that it 
would proceed only on the motion for preliminary in- 
junction. (Document No. 39). There necessarily re- 
mains a period for completion of discovery and prepara- 
tion before a trial on the merits. 

The defendant filed a motion to dismiss the entire 
action pursuant to Federal Rule of Civil Procedure 
12(b)(1) for lack of standing in addition to her argu- 
ments in response to the motion for preliminary injunc- 
tion. (Document No. 50). The plaintiffs filed a response 
to the motion to dismiss (Document No. 69), to which 
the defendant filed a reply. (Document No. 81). 

On the motion of plaintiffs for preliminary injunction, 
the Court heard five days of testimony and one day of 
argument on January 20, 1999 through January 27, 
1999. In addition, the parties submitted briefs, expert 
reports, declarations from many of the named plaintiffs, 
designated portions of deposition transcripts, and docu- 
mentary evidence for the Court’s review. Based on this 
evidence and for the reasons that follow, the motion to 
dismiss will be denied and the motion for a preliminary 
injunction will be granted. 

44a 

I. The Child Online Protection Act 

In what will be codified as 47 U.S.C. § 231, COPA 
provides that: 

(1) PROHIBITED CONDUCT.-Whoever knowingly 
and with knowledge of the character of the material, 
in interstate or foreign commerce by means of the 
World Wide Web, makes any communication for 
commercial purposes that is available to any minor 
and that includes any material that is harmful to 
minors shall be fined not more than $50,000, impris- 
oned not more than 6 months, or both. 

(2) INTENTIONAL VIOLATIONS.-In addition to 
the penalties under paragraph (1), whoever inten- 
tionally violates such paragraph shall be subject to a 
fine of not more than $50,000 for each violation. For 
purposes of this paragraph, each day of violation 
shall constitute a separate violation. 

(3) CIVIL PENALTY.-In addition to the penalties 
under paragraphs (1) and (2), whoever violates 
paragraph (1) shall be subject to a civil penalty of 
not more than $50,000 for each violation. For pur- 
poses of this paragraph, each day of violation shall 
constitute a separate violation. 

COPA specifically provides that a person shall 
be considered to make a communication for commercial 
purposes “only if such person is engaged in the busi- 
ness of making such communication.” 47 U.S.C. 
§ 231(e)(2)(A). A person will be deemed to be “engaged 
in the business” if the 

45a 

person who makes a communication, or offers to 
make a communication, by means of the World Wide 
Web, that includes any material that is harmful to 
minors, devotes time, attention, or labor to such 
activities, as a regular course of such person’s trade 
or business, with the objective of earning a profit as 
a result of such activities (although it is not neces- 
sary 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). A person may be considered to be engaged 
in the business of making, by means of the World 
Wide Web, communications for commercial pur- 
poses that include material that is harmful to 
minors, only if the person knowingly causes the 
material that is harmful to minors to be posted on 
the World Wide Web or knowingly solicits such 
material to be posted on the World Wide Web. 

47 U.S.C. § 231(e)(2)(B). 

Congress defined material that is harmful to minors 
as: 

any communication, picture, image, graphic image 
file, article, recording, writing, or other matter of 
any kind that is obscene or that- 
(A) the average person, applying contemporary 
community standards, would find, taking the 
material as a whole and with respect to minors, is 
designed to appeal to, or is designed to pander to, 
the prurient interest; 

(B) depicts, describes, or represents, in a manner 
patently offensive with respect to minors, an actual 

46a 

or simulated sexual act or sexual contact, an actual 
or simulated normal or perverted sexual act, or a 
lewd exhibition of the genitals or post-pubescent 
female breast; and 

(C) taken as a whole, lacks serious literary, artistic, 
political, or scientific value for minors. 

Id. at § 231(e)(6). Under COPA, a minor is any person 
under 17 years of age. Id. at § 231(e)(7). 

COPA provides communicators on the Web for com- 
mercial purposes affirmative defenses to prosecution 
under the statute. Section 231(c) provides that: 

(c) AFFIRMATIVE DEFENSE.- 
(1) DEFENSE.-It is an affirmative defense to 
prosecution under this section that the defendant, in 
good faith, has restricted access by minors to 
material that is harmful to minors- 
(A) by requiring use of a credit card, debit account, 
adult access code, or adult personal identification 
number; 

(B) by accepting a digital certificate that verifies 
age; or 

(C) by any other reasonable measures that are 
feasible under available technology. 

47a 

The disclosure of information collected in imple- 
menting the affirmative defenses is restricted in 
§ 231(d): 

(d) PRIVACY PROTECTION REQUIREMENTS.- 
(1) DISCLOSURE OF INFORMATION LIM- 
ITED.-A person making a communication described 
in subsection (a)- 
(A) shall not disclose any information collected 
for the purposes of restricting access to such 
communications to individuals 17 years of age or 
older without the prior written or electronic con- 
sent of- 
(i) the individual concerned, if the individual is 
an adult; or 

(ii) the individual’s parent or guardian, if the 
individual is under 17 years of age; and 

(B) shall take such actions as are necessary to 
prevent unauthorized access to such information by 
a person other than the person making such com- 
munication and the recipient of such communi- 
cation. 

(2) EXCEPTIONS.-A person making a commu- 
nication described in subsection (a) may disclose 
such information if the disclosure is- 
(A) necessary to make the communication or 
conduct a legitimate business activity related to 
making the communication; or 

48a 

(B) made pursuant to a court order authorizing 
such disclosure. 

II. Arguments of the Parties 

The arguments of the parties are plentiful and will be 
only summarized here for purposes of the motion for a 
preliminary injunction. Plaintiffs argue that COPA is 
unconstitutional on its face and as applied to them 
because the regulation of speech that is “harmful to 
minors” burdens or threatens a large amount of speech 
that is protected as to adults.1 According to the 
plaintiffs, the fact that COPA is vague, overbroad, and 
a direct ban on speech that provides only affirmative 
defenses to prosecution contributes to the burden 
COPA places on speech. The plaintiffs argue that the 
affirmative defenses provided in COPA do not alleviate 
the burden on speech because their implementation 
imposes an economic and technological burden on 
speakers which results in loss of anonymity to users 
and consequently loss of users to its Web sites. The 
plaintiffs contend that the defendant cannot justify the 
burden on speech by showing that COPA is narrowly 
tailored to a compelling government interest or the 
least restrictive means to accomplish its ends. Alter- 
natively, plaintiffs frame their facial attack to the 
statute as an overbreadth challenge, arguing that 
speech will be chilled on the Web because the statute 
covers more speech than it was intended to cover, even 

1 The plaintiffs are not challenging the provision of COPA that 
pertains to speech that is obscene. Thus, the enforcement of that 
provision of COPA is unaffected by this Memorandum and Order. 
Obscenity and child pornography have been the subject of other 
separate criminal statutes for many years. These laws are as well 
not implicated in this proceeding. 

49a 

if it can be constitutionally applied to a narrow class of 
speakers. The plaintiffs also challenge COPA as being 
unconstitutionally vague under the First and Fifth 
Amendments and facially unconstitutional as to speech 
protected for minors. 

Defendant argues that COPA passes constitutional 
muster because it is narrowly tailored to the gov- 
ernment’s compelling interest in protecting minors 
from harmful materials. The defendant argues that the 
statute does not inhibit the ability of adults to access 
such speech or the ability of commercial purveyors of 
materials that are harmful to minors to make such 
speech available to adults. The defendant points to the 
presence of affirmative defenses in the statute as a 
technologically and economically feasible method for 
speakers on the Web to restrict the access of minors to 
harmful materials. As to the plaintiffs’ argument that 
COPA is overbroad, the defendant argues that the 
definition of “harmful to minors” material does not 
apply to any of the material on the plaintiffs’ Web sites, 
and that the statute only targets commercial pornogra- 
phers, those who distribute harmful to minors material 
“as a regular course” of their business. The defendant 
contends that plaintiffs cannot succeed on their motion 
for a preliminary injunction because they cannot show a 
likelihood of success on their claims and that their claim 
of irreparable harm is merely speculative. 

Some of the defendant’s substantive arguments are 
conceptually intertwined with her arguments in sup- 
port of the pending motion to dismiss the complaint on 
the basis that the plaintiffs lack standing to attack the 
statute. The motion to dismiss will serve as a starting 
point for the Court’s analysis. 

50a 

III. Resolution of Defendant’s Motion to Dismiss 

Among other things, the “irreducible constitutional 
minimum” of standing requires that the plaintiffs allege 
that they have suffered or imminently will suffer an 
injury. It is well established that a credible threat of 
present or future criminal prosecution will confer 
standing. See, e.g., Virginia v. American Booksellers 
Ass’n, Inc., 484 U.S. 383, 392-93, 108 S. Ct. 636, 98 
L.Ed.2d 782 (1988) (noting that the Court was “uncon- 
cerned by the pre-enforcement nature of th[e] suit” and 
holding that the injury-in-fact requirement was met, in 
part, because “plaintiffs have alleged an actual and 
well-founded fear that the law will be enforced against 
them”); Steffel v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 
1209, 39 L.Ed.2d 505 (1974) (“It is not necessary that [a 
party] first expose himself to actual arrest or prosecu- 
tion to be entitled to challenge a statute that he claims 
deters the exercise of his constitutional rights.”); Doe v. 
Bolton, 410 U.S. 179, 188-89, 93 S. Ct. 739, 35 L.Ed.2d 
201 (1973). The rationale underlying this rule is that a 
credible threat of present or future prosecution is itself 
an injury that is sufficient to confer standing, even if 
there is no history of past enforcement. See Bolton, 410 
U.S. at 188, 93 S. Ct. 739. In part, this rationale is 
based on a recognition that a speaker who fears prose- 
cution may engage in self-censorship, which is itself an 
injury. 

“The standard-encapsulated in the phrase ‘credible 
threat of prosecution’-is quite forgiving.” New Hamp- 
shire Right to Life Political Action Comm. v. Gardner, 
99 F.3d 8, 14 (1st Cir. 1996) (“NHRLPAC”); see also 
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 
289, 298, 99 S. Ct. 2301, 60 L.Ed.2d 895 (1979). After 

51a 

analyzing both Supreme Court precedent and federal 
appellate court decisions, the NHRLPAC Court con- 
cluded that “the preceding cases make clear that when 
dealing with pre-enforcement challenges to recently 
enacted (or, at least non-moribund) statutes that fa- 
cially restrict expressive activity by the class to which 
the plaintiff belongs, the court will assume a credible 
threat of prosecution in the absence of compelling 
contrary evidence.” 99 F.3d at 15; see also Babbitt, 442 
U.S. at 301-02, 99 S. Ct. 2301; Doe, 410 U.S. at 188, 93 
S. Ct. 739; American Booksellers, 484 U.S. at 392-93, 
108 S. Ct. 636; Chamber of Commerce v. FEC, 69 F.3d 
600, 603-04 (D.C. Cir. 1995) (even though no present 
danger of enforcement existed, a credible threat of 
prosecution existed because nothing would “prevent 
the Commission from enforcing its rule at any time 
with, perhaps, another change of mind of one of the 
Commissioners”); Wilson v. Stocker, 819 F.2d 943, 946 
(10th Cir. 1987) (holding that when a state statute 
“chills the exercise of First Amendment rights, stand- 
ing exists even though the official charged with enforce- 
ment responsibilities has not taken any enforcement 
action against the plaintiffs and does not presently 
intend to take any such action”). 

The gravamen of the motion of defendant is that 
plaintiffs’ fear of prosecution is wholly speculative and, 
therefore, not a credible threat sufficient to confer 
standing. The defendant argues that the plaintiffs lack 
standing because the material on their Web site is not 
“harmful to minors,” and the plaintiffs are not “engaged 
in the business” of distributing harmful to minors mate- 
rials under the statute. The defendant contends that 
the Court should narrowly construe COPA to apply to 

52a 

those engaged in the business of commercial por- 
nography, which does not include any of the plaintiffs. 

There is nothing in the text of the COPA, however, 
that limits its applicability to so-called commercial 
pornographers only; indeed, the text of COPA imposes 
liability on a speaker who knowingly makes any com- 
munication 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).” (emphasis added). Because COPA applies to 
communications which include, but are not necessarily 
wholly comprised of material that is harmful to minors, 
it logically follows that it would apply to any Web site 
that contains only some harmful to minors material. 

Based on the allegations of the complaint and the 
evidence and testimony presented to the Court, it 
appears that all of the individual plaintiffs except 
Electronic Privacy Information Center have some con- 
tent on their Web sites or post some content on other 
sites that is sexual in nature.2 All of the organizational 

2 Plaintiff Electronic Privacy Information Center (“EPIC”) is a 
nonprofit education organization which studies civil liberties and 
privacy issues on the Internet. Thus, EPIC claims that it will 
suffer imminent injury as a user of the Web because it fears that it 
will have to incur costs or its staff will lose anonymity in accessing 
content on the Web and that content providers, to comply with 
COPA, will remove materials from their Web sites that it has been 

53a 

plaintiffs have members who have some content on 
their Web sites or who post some content on other sites 
that is sexual in nature.3 The plaintiffs contend that 
such sexual material could be considered “harmful to 
minors” by some communities. 

The plaintiffs offer an interpretation of the statute 
which is not unreasonable, and if their interpretation of 
COPA’s definition of “harmful to minors” and its appli- 
cation to their content is correct, they could potentially 
face prosecution for that content on their Web sites. 
Vermont Right to Life Comm. Inc. v. Sorrell, 19 
F. Supp.2d 204, 210 (D. Vt. 1998) (plaintiffs had stand- 
ing to challenge campaign finance statute, even though 
State argued that the plaintiffs were and had been 

able to access and study in the past. (Complaint ¶¶ 137-141). The 
First Amendment protects the right to “receive information and 
ideas.” Virginia State Board of Pharmacy v. Virginia Citizens 
Consumer Council, Inc., 425 U.S. 748, 757, 96 S. Ct. 1817, 48 
L.Ed.2d 346 (1976) (internal quote omitted); see also Pacific Gas 
and Electric Company v. Public Utilities Commission of Califor- 
nia, 475 U.S. 1, 7, 106 S. Ct. 903, 89 L.Ed.2d 1 (1986) (noting that 
the First Amendment protects the public’s interest in receiving 
information); Kreimer v. Bureau of Police for the Town of 
Morristown, 958 F.2d 1242, 1254-55 (3d Cir. 1992) (same). 

3 Furthermore, the four organizations who are bringing suit on 
behalf of their members—the American Civil Liberties Union, the 
American Booksellers Foundation for Free Expression, the Elec- 
tronic Frontier Foundation and the Internet Content Coalition— 
have averred facts sufficient to support their standing to facially 
challenge the statute. See, e.g., Hunt v. Washington Apple Adver. 
Comm’n, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L.Ed.2d 383 (1977). 
In each case, members of their respective organizations would 
have standing in their own right, the interest each organization 
seeks serves to protect is germane to its purpose and neither the 
claim asserted nor the relief requested requires the participation 
of individual members in the lawsuit. See id. 

54a 

complying with disclosure requirements and that inter- 
nal group mailings or an isolated distribution of flyers 
at a county fair are “a far cry from the mass media 
activities contemplated by the legislature” because the 
statute on its face could be applied to the activities of 
the plaintiffs). Moreover, in the First Amendment 
context, courts recognize a that litigants “are permitted 
to challenge a statute not because their own rights of 
free expression are violated, but because of a judicial 
prediction or assumption that the statute’s very exis- 
tence may cause others not before the court to refrain 
from constitutionally protected speech or expression.” 
American Booksellers, 484 U.S. at 393, 108 S. Ct. 636 
(internal quotation and citation omitted). This Court 
concludes that the plaintiffs have articulated a credible 
threat of prosecution or shown that they will immi- 
nently suffer an injury sufficient to establish their 
standing to bring this lawsuit. Accordingly, the motion 
to dismiss will be denied. 

IV. Standard for a Preliminary Injunction 

To obtain a preliminary injunction, the plaintiffs must 
prove: (1) a likelihood of success on the merits; (2) 
irreparable harm; (3) that less harm will result to the 
defendant if the preliminary injunction issues than to 
the plaintiffs if the preliminary injunction does not 
issue; and (4) that the public interest, if any, weighs in 
favor of plaintiffs. See Pappan Enterprises, Inc. v. 
Hardees’s Food Systems, Inc., 143 F.3d 800, 803 (3d Cir. 
1998). 

55a 

V. Findings of Fact 

Based on all the evidence admitted at the preliminary 
injunction hearing, the Court makes the following 
findings of fact.4 

The parties submitted a Joint Stipulation of Uncon- 
tested Facts at the preliminary injunction hearing. 
(Joint Exhibit 3). Findings of fact numbered 1 through 
20 and other findings as indicated are taken from the 
Joint Stipulation to provide background. 

A. The Internet and the World Wide Web 

0. The Internet is a giant network that interconnects 
innumerable smaller groups of linked computer 
networks: a network of networks. (Joint Exhibit 3 
¶ 1). 

1. The nature of the Internet is such that it is very 
difficult, if not impossible, to determine its size at a 
given moment. However, it is indisputable that the 
Internet has experienced extraordinary growth in 
the past few years. In 1981, fewer than 300 com- 

4 The final adjudication of this case will not occur until after a 
trial on the merits, and thus, the parties may present further evi- 
dence at that trial. The findings of fact entered today, unless the 
result of a stipulation of the parties or based upon substantially 
identical testimony by witnesses for both sides, are characterized 
by the Court unconventionally as “testimony” or “evidence pre- 
sented” so that the Court can explain the evidentiary basis for this 
Court’s legal conclusion that the plaintiffs have met their burden 
under Federal Rule of Civil Procedure 65 to establish their right to 
the injunction they seek. Thus, these provisional findings will gov- 
ern the case until conclusive findings of fact on the merits of the 
case are entered after the trial. 

56a 

puters were linked to the Internet, and by 1989, the 
number stood at fewer than 90,000 computers. By 
1993, however, over 1,000,000 computers were 
linked. The number of host computers has more 
than tripled from approximately 9.4 million hosts in 
January 1996 to more than 36.7 million hosts in July 
1998. Approximately 70.2 million people of all ages 
use the Internet in the United States alone. (Joint 
Exhibit 3 ¶ 3). 

2. Some of the computers and computer networks 
that make up the Internet are owned by govern- 
mental and public institutions; some are owned by 
non-profit organizations; and some are privately 
owned. The resulting whole is a decentralized, 
global medium of communications—or “cyber- 
space”—that links individuals, institutions, corpo- 
rations, and governments around the world. The 
Internet is an international system. This communi- 
cations medium allows any of the literally tens of 
millions of people with access to the Internet to 
exchange information. These communications can 
occur almost instantaneously, and can be directed 
either to specific individuals, to a broader group of 
individuals interested in a particular subject, or to 
the world as a whole. (Joint Exhibit 3 ¶ 4). 

3. The content on the Internet is as diverse as human 
thought. The Internet provides an easy and 
inexpensive way for a speaker to reach a large 
audience, potentially of millions. The start-up and 
operating costs entailed by communication on the 
Internet often are significantly lower than those 
associated with use of other forms of mass commu- 
nication, such as television, radio, newspapers, and 

57a 

magazines. Creation of a Web site can range in 
cost from a thousand to tens of thousands of dollars, 
with monthly operating costs depending on one’s 
goals and the Web site’s traffic. Commercial online 
services such as America Online allow subscribers 
to create a limited number of Web pages as a part 
of their subscription to AOL services. Any Inter- 
net user can communicate by posting a message to 
one of the thousands of available newsgroups and 
bulletin boards or by creating one of their own or 
by engaging in an on-line “chat”, and thereby po- 
tentially reach an audience worldwide that shares 
an interest in a particular topic. (Joint Exhibit 3 
¶ 12). 

4. Individuals can access the Internet through com- 
mercial and non-commercial “Internet service pro- 
viders” of ISPs that typically offer modem access to 
a computer or computer network linked to the 
Internet. Many such providers are commercial 
entities offering Internet access for a monthly or 
hourly fee. Some Internet service providers, how- 
ever, are non-profit organizations that offer free or 
very low cost access to the Internet. (Joint Exhibit 
3 ¶ 18). 

5. Another common way that individuals can access 
the Internet is through one of the major national 
commercial “online services” such as America 
Online or the Microsoft Network. These online ser- 
vices offer nationwide computer networks (so that 
subscribers can dial-in to a local telephone number), 
and the services provide extensive and well orga- 
nized content within their own proprietary com- 
puter networks. In addition to allowing access to 

58a 

the extensive content available within each online 
service, the services also allow subscribers to link 
to the much larger resources of the Internet. Full 
access to the online service (including access to the 
Internet) can be obtained for modest monthly or 
hourly fees. The major commercial online services 
have millions of individual subscribers across the 
United States. (Joint Exhibit 3 ¶ 19). 

6. In addition to ISPs, individuals may be able to 
access the Internet through schools, employers, 
libraries, and community networks. (Joint Exhibit 
3 ¶¶ 14-17). 

7. Once one has access to the Internet, there are a 
wide variety of different methods of communication 
and information exchange over the network, utiliz- 
ing a number of different Internet “protocols.” 
These many methods of communication and infor- 
mation retrieval are constantly evolving and are 
therefore difficult to categorize concisely. The 
most common methods of communications on the 
Internet (as well as within the major online ser- 
vices) can be roughly grouped into six categories: 

(1) one-to-one messaging (such as “e-mail”), 

(2) one-to-many messaging (such as “listserv” or 
“mail exploders”), 

(3) distributed message databases (such as 
“USENET newsgroups”), 

(4) real time communication (such as “Internet 

Relay Chat”), 

59a 

(5) real time remote computer utilization (such as 
“telnet”), and 

(6) remote information retrieval (such as “ftp,” 
“gopher,” and the “World Wide Web”). 

Most of these methods of communication can be 
used to transmit text, data, computer programs, 
sound, visual images (i.e., pictures), and moving 
video images. (Joint Exhibit 3 ¶ 22). 

8. When persons communicate solely via e-mail, they 
utilize a protocol known as SMTP (for simple mail 
transfer protocol). Similarly, persons may chat 
using the Internet Relay Chat protocol, or may 
post messages on “Usenet” news groups using a 
protocol referred to as NNTP. The communi- 
cations listed above in categories (1) through (5) do 
not involve communicating by means of “HTTP” or 
hypertext transfer protocol, which is the protocol 
effected by COPA. (Joint Exhibit 3 ¶ 23). 

9. Web-based chat rooms, e-mail, and newsgroups 
utilizing HTTP or hyper-text transfer protocol are 
interactive forms of communication, providing the 
user with the opportunity both to speak and to 
listen. (Joint Exhibit 3 ¶ 24). 

10. The primary method of remote information re- 
trieval today is the World Wide Web. (Joint Exhi- 
bit 3 ¶ 25). 

11. The World Wide Web, or the “Web,” uses a “hyper- 
text” formatting language called hypertext markup 
language (HTML), and programs that “browse” the 
Web can display HTML documents containing text, 

60a 

images, sound, animation and moving video stored 
in many other formats. Any HTML document can 
include links to other types of information or 
resources, so that while viewing an HTML docu- 
ment that, for example, describes resources avail- 
able on the Internet, an individual can “click” using 
a computer mouse on the description of the re- 
source and be immediately connected to the 
resource itself. Such “hyperlinks” allow informa- 
tion to be accessed and organized in very flexible 
ways, and allow individuals to locate and efficiently 
view related information even if the information is 
stored on numerous computers all around the 
world. (Joint Exhibit 3 ¶ 26). 

12. The World Wide Web was created to serve as the 
platform for a global, online store of knowledge, 
containing information from a diversity of sources 
and accessible to Internet users around the world. 
Although information on the Web is contained in 
individual computers, the fact that each of these 
computers is connected to the Internet through 
World Wide Web protocols allows all of the infor- 
mation to become part of a single body of knowl- 
edge. (Joint Exhibit 3 ¶ 27). 

13. Many organizations now have “home pages” on the 
Web. These are documents that provide a set of 
links designed to represent the organization, and 
through links from the home page, guide the user 
directly or indirectly to information about or 
relevant to that organization. (Joint Exhibit 3 ¶ 

30). 

14. Links may also take the user from the original Web 
site to another Web site on another computer con- 

61a 

nected to the Internet. The ability to link from one 
computer to another, from one document to another 
across the Internet regardless of its status or 
physical location, is what makes the Web unique. 
(Joint Exhibit 3 ¶ 31). 

15. The World Wide Web exists fundamentally as a 
platform through which people and organizations 
can communicate through shared information. 
When information is made available, it is said to be 
“published” on the Web. Publishing on the Web 
simply requires that the “publisher” has a com- 
puter connected to the Internet and that the com- 
puter is running Web server software. The com- 
puter can be as simple as a small personal computer 
costing less than $ 1500 dollars or as complex as a 
multi-million dollar mainframe computer. Many 
Web publishers choose instead to lease disk storage 
space from someone else who has the necessary 
computer facilities, eliminating the need for actu- 
ally owning any equipment oneself. (Joint Exhibit 3 
¶ 32). 

16. A variety of systems have developed that allow 
users of the Web to search for particular infor- 
mation among all of the public sites that are part of 
the Web. Services such as Yahoo, Excite!, Alta- 
vista, Webcrawler, Infoseek, and Lycos are all 
services known as “search engines” or directories 
that allow users to search for Web sites that 
contain certain categories of information, or to 
search for key words. 

17. No single organization controls any membership in 
the Web, nor is there any single centralized point 
from which individual Web sites or services can be 

62a 

blocked from the Web. From a user’s perspective, 
it may appear to be a single, integrated system, but 
in reality it has no centralized control point. (Joint 
Exhibit 3 ¶ 37). 

18. 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. Unlike the newspaper, 
broadcast station, or cable system, Internet 
technology gives a speaker a potential worldwide 
audience. Because the Internet is a network of 
networks, any network connected to the Internet 
has the capacity to send and receive information to 
any other network. (Joint Exhibit 3 ¶ 41). 

19. Sexually explicit material exists on the Internet. 
Such material includes text, pictures, audio and 
video images, extends from the modestly titillating 
to the hardest core. Some Web sites display for 
free what appear to be still or moving images of a 
sexually explicit nature. Sexually explicit materi- 
als exist on Web pages and on Web-based and non- 
Web based interactive fora. It exists on sites based 
in the United States and sites based outside the 
United States. (Joint Exhibit 3 ¶ 43). 

20. There was no evidence in the record regarding the 
number of Web sites which are posted within the 
United States. However, based on a statistic from 
July of 1998 on the percentage of Internet hosts 
that originate in the United States, Dr. Donna 
Hoffman estimated that 60% of all content origi- 
nates in the United States and 40% originates 
outside the United States. (Hoffman Testimony). 

63a 

B. The Speech Provided by the Plaintiffs 

21. The plaintiffs represent a broad range of individu- 
als, entities, and organizations suing on behalf of 
their members, who are speakers, content pro- 
viders, and ordinary users on the Web. Some of the 
plaintiffs post, read, and respond to content includ- 
ing, inter alia, resources on obstetrics, gynecology, 
and sexual health; visual art and poetry; resources 
designed for gays and lesbians; information about 
books and stock photographic images offered for 
sale; and online magazines. (Plaintiffs’ Declarations; 
Testimony of Talbot, Laurila, Barr, Rielly, and 
Tepper). 

22. Internet users of all ages access content provided 
by the plaintiffs over the Web. At least some of the 
plaintiffs provide interactive fora such as Web- 
based electronic mail (email), Web-based chat, and 
Web-based discussion groups. Content providers 
and Web site operators who offer interactive fora, 
including some of the plaintiffs, usually select the 
topic or topics that will be interactively “discussed” 
by users through reading and posting content. 
(Plaintiffs’ Declarations; Talbot Testimony; Rielly 
Testimony). 

23. The vast majority of information on the plaintiffs’ 
Web sites, as on the Web in general, is provided to 
users for free. (Plaintiffs’ Declarations; Hoffman 
Testimony). 

24. The plaintiffs are a diverse group of speakers, 
which was illustrated by the live testimony and 

64a 

declarations that were submitted to the Court.5 
Christopher Barr, the vice president and editor-in- 
chief of CNET, testified that CNET’s Web site 
provides news on a variety of topics which is 
available to users for free. CNET is supported by 
advertising that is displayed on its Web page. Barr 
testified that while he did not think that any 
material on CNET was harmful to minors, CNET 
feared prosecution under COPA for materials of a 
sexual nature on its Web site, particularly links 
provided in articles on the site to other sites on the 
Web and materials that may be downloaded for 
free by a user from the site. Barr testified that 
articles on the site in the past have linked to 
Playboy’s Web site, and that a Kama Sutra screen 
saver, which includes forty drawings of people 
engaged in sexual contact, can be downloaded onto 
a user’s computer. Barr testified that while CNET 
had not yet developed a policy regarding what the 
site would do to comply with COPA or where it 

5 The Court considered live testimony and declarations of the 
plaintiffs which was submitted at both the preliminary injunction 
hearing and the temporary restraining order hearing. Declarations 
were submitted by Dr. Jeffrey Scott Levy of OBGYN.net; Nikki 
Douglas of RiotGrrl; Charles Tarver of BlackStripe; Nadine 
Strossen, member of the ACLU; Mark Segal of Philadelphia Gay 
News; Jon E. Noring of the Electronic Frontier Foundation 
(EFF); Marc Rotenberg of the Electronic Privacy Information 
Center; John William Boushka of EFF; David Bunnell, member of 
the ACLU; Lawrence Ferlinghetti of City Lights Bookstore and 
member of the ACLU; Richard P. Groman of West Stock; Miriam 
Sontz of Powell’s Bookstore; Christopher Finan of the American 
Booksellers for Free Expression; Adam K. Glickman of Addazi, 
Inc. d/b/a Condomania; Ernest Johnson of ArtNet Worldwide 
Corporation, Roberta Speyer of OBGYN.net, Barry Steinhardt of 
EFF; and Patricia Nell Warren, a member of the ACLU. 

65a 

would place screening devices, if at all, he stated 
that CNET would probably opt to self-censor the 
content of the site. (Barr Testimony). 

25. Mitchell Steven Tepper, a member of the ACLU, is 
owner and operator of the Sexual Health Network, 
a Web site that he runs out of his home in Connecti- 
cut. The mission of his Web site is to provide easy 
access to information about sexuality geared 
toward individuals with disabilities. In addition to 
content which Tepper provides on the site, he also 
offers interactive components, including a bulletin 
board, where users may post comments, and a chat 
room. While any user can access the content on his 
site for free, Tepper is trying to make a profit from 
the site through advertising, but as yet has been 
unsuccessful. Tepper testified that Sexual Health 
Network fears prosecution under COPA based on 
the content of this site, which is almost exclusively 
sexual in nature and which contains, for example, 
information on sexual surrogacy as a form of sexual 
therapy and advice on how a large man and a small 
women should position themselves comfortably for 
intercourse. Tepper expressed concern that be- 
cause of the sexual nature of his Web site, imple- 
menting one of the affirmative defenses in COPA 
on his Web site would have the effect of driving 
viewers away from his site because the users would 
not want to disclose personal information that 
reveals their identity in connection with his site. 
Tepper also testified that he believed that utilizing 
a third party age verification service would reduce 
the amount of traffic on his site because of the 
stigma and costs to the user associated with such 
services. (Tepper Testimony). 

66a 

26. Thomas P. Rielly is the founder and chairman of 
PlanetOut, a Web site directed to developing an 
online community for gay, lesbian, bisexual, and 
transgendered people. PlanetOut’s primary reve- 
nue comes from advertising on the site. Rielly 
testified that the Internet is a valuable resource for 
“closeted” people who do not voluntarily disclose 
their sexual orientation due to fear of the reactions 
of others because it allows closeted people access to 
this information while preserving their anonymity. 
PlanetOut provides a member form for users who 
would like to register in order to receive free 
benefits, but it does not require membership to 
access its site. Rielly estimated that less than 10% 
of the users to his site have registered, and Planet- 
Out does not verify the registration information 
provided by the user. The site includes a bulletin 
board, on which users may post and read messages, 
and chat rooms. The chat rooms are open 24 hours 
a day, during which they are monitored by a person 
for some of the time. Rielly testified that it would 
be impracticable to monitor all the chat on the site, 
and that there is no way to edit the content of chat 
before it is posted. (Rielly Testimony). PlanetOut 
contains some content of a sexual nature, including 
chat profiles of users, at least one of which included 
a photograph of a male with exposed genitals, and 
Internet radio shows with “Dr. Ruthless” on topics 
such as anal sex and masturbation. (Plaintiffs’ Exs. 
75, 76). Other areas of PlanetOut’s site are not 
sexual in nature. Rielly testified that he predicted 
that traffic to his site would drop off if he were to 
require credit card or other age verification on 
PlanetOut; to support this prediction, he noted that 
the traffic to a competitor’s site which had placed 

67a 

its entire content behind a credit card wall and 
charged users $10 per month only grew to 10,000 
total users. While PlanetOut currently cannot 
process credit cards on its site, it plans to develop 
its ability to conduct direct commercial transactions 
over the Web in the future. (Rielly Testimony). 

C. Commercial Activity on the Web 

27. E-commerce, or commercial transactions which are 
conducted online, is rapidly increasing. (Defen- 
dant’s Ex. 188). Hoffman testified that there are 

3.5 million Web sites globally on the Web, and ap- 
proximately one third of those sites are commer- 
cial, that is Web sites that intend to make a profit. 
By the year 2003, it is estimated that the total 
revenues from the Web, including revenues from 
ISPs, business to business commerce, and business 
to consumer commerce, will reach $ 1.4 to $ 3 
trillion. (Hoffman Testimony). There is no doubt 
that growth on the Web is explosive. 

28. There are many reasons that may explain such ex- 
pansive growth. For example, the Web is attrac- 
tive to businesses because there are low barriers to 
entry as compared to other forms of commerce and 
the Web offers a global market or audience of all 
ages. The Web is attractive to consumers of all 
ages because a wide array of products and services 
are offered in an environment which attempts to 
provide those consumers with “full information.” 
(Hoffman Testimony). 

29. Despite the explosive growth and popularity on the 
Web, not all companies who operate Web sites are 
making money online. (Hoffman Testimony). 

68a 

30. Hoffman testified that there are five general busi- 
ness models operating on the Web: (1) the Internet 
presence model, which involves no direct sales or 
advertising but is used by a business to raise cus- 
tomer awareness of the name and products of the 
Web site operator, (2) the advertiser supported or 
sponsored model, in which nothing is for sale, 
content is provided for free, and advertising on the 
site is the source of all revenue, (3) the fee based or 
subscription model in which users are charged a fee 
before accessing content, (4) the efficiency or 
effective gains model, by which a company uses the 
Web to decrease operating costs, and (5) the online 
storefront, in which a consumer buys a product or 
service directly over the Web. (Hoffman Testi- 
mony). 

31. Dr. Hoffman testified that the most popular busi- 
ness model is the advertiser supported or spon- 
sored model, which is illustrated by the variety of 
online magazines which operate on the Web. The 
fee based or subscription model is the least popular 
on the Web, although there are some successful 
examples of this model, such as the Wall Street 
Journal Web site. It is possible for a Web site to 
adopt a business model that is a hybrid of these five 
models. (Hoffman Testimony). 

32. As online storefront models and general commer- 
cialization on the Web proliferates, the use of credit 
cards online and the requirement that users com- 
plete fill-out forms or register with a site will 
increase. (Hoffman Testimony). 

33. The plaintiffs employ a variety of different business 
models. Some of the plaintiffs receive income from 

69a 

the operation of their sites by selling advertising on 
their Web sites. Some of the plaintiffs charge other 
Internet speakers, such as fine artists, fine art 
galleries, or audio or video content creators, to post 
relevant content on their Web sites. Some of the 
plaintiffs sell goods over their Web sites, ranging 
from millions of books, to condoms and other sexual 
health devices, to books that they authored them- 
selves. Some of the plaintiffs generate revenue by 
combining these business models. (Plaintiffs’ Dec- 
larations; Testimony of Barr, Rielly, Tepper, Tal- 
bot, Laurila). 

34. Dr. Hoffman testified that investors evaluate an e- 
business by the number of customers they believe 
the Web site is able to attract and retain over time, 
or “traffic.” She believes that traffic is the most 
critical factor for determining success or potential 
for success on a Web site. The best way to stimu- 
late user traffic on a Web site is to offer some con- 
tent for free to users. Thus, virtually all Web sites 
offer at least some free content. (Hoffman Testi- 
mony). 

35. Dr. Hoffman testified that another factor affecting 
traffic to a Web site is “flow.” Interactivity in- 
creases a users interest level on the Web, which in 
turn results in return visits to the Web by users. 
“Flow” describes an online experience in which the 
user is completely engaged and focused while 
browsing or surfing the Web, has a sense of control 
over the experience, and has a proper mix of skills 
and challenges. Because return users equal more 
traffic to Web sites, facilitating a user’s flow expe- 
rience is related to a Web site’s commercial 

70a 

success. There are many factors that could disrupt 
a user’s flow, including registration screens, broken 
links on a site, or poor site design. (Hoffman Testi- 
mony and Expert Report). 

36. Dr. Hoffman observed in her testimony that in gen- 
eral, users of the Web are reluctant to provide per- 
sonal information to Web sites unless they are at 
the end of an online shopping experience and pre- 
pared to make a purchase. (Hoffman Testimony). 
Some Web sites that have required registration or 
a payment of a fee before granting access to a user 
to the site have not been successful, such as 
HotWired and Idea Market. Other Web sites that 
require a credit card to make a purchase have been 
successful in obtaining such information from 
users, such as Amazon.com. (Hoffman Testimony). 
Through studies that she has conducted and her 
observations of consumer behavior online, Hoffman 
concluded that consumers on the Web do not like 
the invasion of privacy from entering personal in- 
formation, that their willingness to reveal personal 
information to a Web site is connected to the 
degree of trust the user has of the Web site, and 
that usually users will only reveal credit card infor- 
mation at the time they want to purchase a product 
or service. (Hoffman Testimony). 

D. Burden of Implementing the Affirmative De- 
fenses Provided in COPA 

37. COPA provides three affirmative defenses that 
speakers may utilize to avoid prosecution for com- 
municating harmful to minors materials: (1) requir- 
ing the use of a credit card, debit account, adult 
access code, or adult personal identification num- 

71a 

ber, (2) accepting a digital certificate that verifies 
age, or (3) any other reasonable measures that are 
feasible under available technology. The parties’ 
expert witnesses agree that at this time, while it is 
technologically possible, there is no certificate 
authority that will issue a digital certificate that 
verifies a user’s age. (Farmer Testimony; Olsen 
Testimony). The plaintiffs presented testimony 
that there are no other reasonable alternatives that 
are technologically feasible at this time to verify 
age online. (Farmer Testimony). The defendant 
did not present evidence to the contrary. 

38. It appears that the parties agree that the technol- 
ogy required to implement credit card authoriza- 
tion and adult access codes on a Web site is cur- 
rently available and used on the Web. (Olsen 
Testimony; Farmer Testimony). 

39. Depending on (1) the amount of content on a Web 
site, (2) the amount of that content that could be 
considered “harmful to minors,” (3) the degree to 
which a Web site currently is organized into files 
and directories, (4) the degree to which “harmful to 
minors” content currently is segregated into a 
particular file or directory on the Web site, and (5) 
the level of expertise of the Web site operator, the 
technological requirements for implementing the 
affirmative defenses of credit card verification or 
accepting adult access codes or PINs ranges in the 
testimony of the parties from trivial (Olsen Testi- 
mony) to substantial (Farmer Testimony). The 
specific technological requirements of and costs 
associated with both affirmative defenses are 
detailed below. 

72a 

1. Technological Requirements and Out-of-Pocket 
Costs of Implementing Credit Cards 

40. To obtain credit card verification from users before 
granting access to harmful to minors materials, a 
Web site would need to construct a credit card 
screen in front of such materials. (Farmer Testi- 
mony). It is not disputed that a credit card or age 
verification screen can be placed at any point on a 
Web site: on the last page, or in front of an area of 
the site, or on select pages throughout the site, or 
at the beginning of the site on the home page. 
(Farmer Testimony; Tepper Testimony). 

41. The parties agree that to implement the verifica- 
tion of credit card numbers, a Web site would need 
to undertake several steps, including (1) setting up 
a merchant account, (2) retaining the services of an 
authorized Internet-based credit card clearing- 
house, (3) inserting common gateway interface, or 
CGI, scripts into the Web site to process the user 
information, (4) possibly rearranging the content on 
the Web site, (5) storing credit cards numbers or 
passwords in a database, and (6) obtaining a secure 
server to transmit the credit card numbers. (Olsen 
Testimony; Farmer Testimony). 

42. The evidence shows that the cost of credit card 
verification services range from a start-up cost of 
approximately $300, plus per transaction fees, for a 
service that does not automatically verify or 
authorize the credit card numbers on the site to 
thousands of dollars in start-up costs, plus per 
transaction fees, to set up online credit card verifi- 
cation. (Tepper Testimony; Farmer Testimony). 

73a 

43. Alternatively, a Web site could retain the services 
of a third party to provide online management of 
the verification of credit cards, but the Web site 
would incur costs for such services. (Olsen 
Testimony). 

44. The parties agree that if a Web site is using an ISP 
that does not support credit card verification or 
CGI scripts, a Web site may need to transfer the 
content to another ISP or its own server. (Farmer 
Testimony; Olsen Testimony). The plaintiffs prof- 
fer that a secure server which supports credit card 
verification may cost a few thousand dollars. 
(Farmer Testimony). 

45. There is no dispute that there are two types of cre- 
dit card transactions that occur over the Internet: 
(1) an “authorize only” transaction (which deter- 
mines whether the credit card number is valid and 
can be used to make a purchase), and (2) a “funds 
capture” transaction (which charges a particular 
amount to the user’s credit card for a product or 
service). A fee is charged to the content provider 
every time a credit card number is authorized; such 
transaction fees would be approximately $.15 to 
$.25 per transaction. (Farmer Testimony; Olsen 
Testimony). Such authorization is not indicated on 
the credit card holder’s monthly statement. (Olsen 
Testimony; Farmer Testimony). However, it is not 
clear from the conflicting testimony presented at 
the preliminary injunction hearing whether credit 
card verification services or clearinghouses will 
authorize or verify a credit card number in the 
absence of a subsequent funds capture transaction. 
(Farmer Testimony; Olsen Testimony). 

74a 

46. The parties’ experts agree that to avoid incurring 
the costs of authenticating a credit card number 
every time a user wants to access harmful to 
minors content behind the screen, a Web site 
operator could maintain a database of credit card 
numbers provided by previous users to the site, 
enabling the credit card number of a repeat user to 
be verified through the database. Thus, a Web site 
would only incur the cost of authorization one time 
per year for each new user to the screened content. 
(Farmer Testimony; Olsen Testimony). A content 
provider could also provide users with a password 
once their credit card has been authorized and 
store the valid passwords in a database; to return 
to a screened portion of the site, a return user 
would enter her password. A Web site could store 
encrypted credit card numbers or passwords on the 
site to reduce security risks associated with storing 
such information online. (Farmer Testimony; Olsen 
Testimony). Creating and maintaining such a data- 
base would impose some technological burdens and 
economic costs on a content provider, but a simple 
database could be constructed without much 
expense. (Farmer Testimony, Olsen Testimony). 

48. The plaintiffs presented testimony that a minor 
may legitimately possess a valid credit or debit 
card. (Farmer Testimony). Of course, a minor may 
obtain the permission of her parents to use a par- 
ent’s credit card as well. The defendant presented 
no evidence to the contrary. 

75a 

2. Technological Requirements and Costs Associ- 
ated with Adult Access Codes or PINs 

48. The knowledgeable witnesses for the parties agree 
that there are approximately twenty-five services 
on the Web which will provide adult access codes or 
personal identification numbers. Adult access 
codes and adult personal identification numbers 
(PINs) are passwords that allow a user to access 
either an entire site or a restricted area of a Web 
site that accepts that particular access code or PIN. 
(Alsarraf Testimony, Farmer Testimony). 

49. Laith Alsarraf, the president and CEO of Cybernet 
Ventures, testified on behalf of the defendant at 
the preliminary injunction hearing regarding the 
adult verification service, Adult Check, provided by 
his company. Once an Adult Check screen is 
inserted at some point into a Web site, that portion 
of the Web site is blocked to everyone unless they 
possess a valid Adult Check PIN. A Web site 
operator can sign up for free with Adult Check to 
accept Adult Check PINs, and a Web site operator 
can earn commissions of up to 50% to 60% of the 
fees generated by users who sign up with Adult 
Check to view screened content on the site. Adult 
Check provides the Web site operator with a script, 
free of charge, which can be placed at any point on 
the Web site where the content provider wishes to 
block access to minors. (Alsarraf Testimony). 

50. The parties do not dispute that a user who comes 
across an Adult Check screen on a Web site may 
click on the link to the Adult Check site and imme- 
diately apply for an Adult Check PIN online. 

76a 

(Alsarraf Testimony). Technically, almost all Web 
sites can link to such a third party, and the link may 
be placed anywhere on the Web site. (Farmer 
Testimony). 

51. A user may obtain an Adult Check PIN for $16.95 
per year. Adult Check accepts payment by credit 
card online, or a user may elect to fax or mail an 
application and a check and a copy of a passport or 
driver’s license to Adult Check. (Alsarraf Testi- 
mony). 

52. According to Alsarraf, approximately three million 
users possess a valid Adult Check PIN. The 
number of Web sites currently using Adult Check 
is approximately 46,000. Adult Check provides a 
list of links to other sites utilizing Adult Check 
PINs on its Web site. The vast majority of these 
links are to adult entertainment sites. (Alsarraf 
Testimony). 

53. Alsarraf explained that Adult Check utilizes 
mechanisms whereby it attempts to track fraudu- 
lent use of the Adult Check PINs. If Adult Check 
determines that a PIN is being used fraudulently, 
that PIN is immediately invalidated. In addition, 
Adult Check offers free tools to Web sites to 
prevent a user from bookmarking a page containing 
harmful to minors material on a Web site and later 
returning to that page without first passing 
through the Adult Check screen. A Web site would 
have to implement such tools to prevent a user 
from attempting such an end-run around the 
screen. (Alsarraf Testimony). The Court infers 
that similar tools should be technically available to 

77a 

other Web sites which have implemented screening 
by other methods, such as credit cards. 

3. Reorganizing a Web Site to Segregate Harmful to 
Minors Materials 

54. It appears clear to all the parties that to place 
potentially harmful to minors materials behind 
credit card or adult verification screens, some 
reorganization of the Web site would be required. 
(Farmer Testimony; Olsen Testimony). To do this, 
a content provider could reorganize the files in the 
Web site’s directory, which is a place on the site 
which can hold such files, to disallow files con- 
taining material that is harmful to minors from 
being served to a user unless she enters a credit 
card number or adult access code or PIN. (Farmer 
Testimony, Olsen Testimony). A Web site can or- 
ganize its directories and the files within the di- 
rectories in any way it chooses. (Olsen Testimony; 
Farmer Testimony). 

55. It appears uncontradicted that a content provider 
can segregate potentially harmful to minors images 
from other non-harmful to minors images and text 
on a single web page by organizing the potentially 
harmful to minors images into a separate directory 
such that a user could only call up those images on 
the page once she had entered her adult PIN, adult 
access code, or credit card number. The other 
images and text on the page would appear for all 
users. (Alsarraf Testimony). Text is more difficult 
to segregate than images, and thus if a written 
article contains only portions that are potentially 
harmful to minors, those portions cannot be hidden 
behind age verification screens without hiding the 

78a 

whole article or segregating those portions to 
another page, without the use of Java scripts or 
other technology that would allow the text to be 
pieced back together once a user entered a credit 
card, access code, or PIN. (Farmer Testimony; 
Olsen Testimony). 

56. The party’s experts appear to agree that the length 
of time required for, and economic costs incurred 
by, a content provider to review the content cur- 
rently on a Web site for potentially harmful to 
minors materials and reorganize or segregate such 
content depends (1) on the amount of content on a 
Web site, (2) whether the Web site operator or 
content provider can utilize a search mechanism to 
review its content, (3) whether a Web site is 
already organized into files and directories accord- 
ing to content, and (4) the familiarity a Web site 
operator has with the content of the files and 
directories. (Farmer Testimony; Olsen Testimony). 
The effort required to segregate new content on an 
ongoing basis over time once a Web site has been 
organized to implement the affirmative defenses in 
COPA may be a relatively easier and less expen- 
sive task for a Web site operator. (Olsen Testi- 
mony). 

57. Some of the plaintiffs have contracts with advertis- 
ers, ISPs, or bounty partners which prohibit the 
Web site’s ability to place advertisements near par- 
ticular content on the Web site or post particular 
content that contains nudity or that is of a sexually 
explicit nature. (Defendant’s Exs. 25 (under seal) 
and 105; Tepper Testimony). Such contracts indi- 
cate that market forces may necessitate Web site 

79a 

operators and content providers who rely on ad- 
vertising revenue to segregate content of a sexual 
nature regardless of COPA. 

58. Once again the experts agreed that the only way to 
comply with COPA regarding potentially harmful 
to minors materials in chat rooms and bulletin 
boards is to require that a credit card screen or 
adult verification be placed before granting access 
to all users (adults and minors) to such fora, or to 
implement a full-time monitor on the site to read all 
content before it is posted. Because of the dynamic 
nature of the content of such interactive fora, there 
is no method by which the creators of those fora 
could block access by minors to harmful to minors 
materials and still allow unblocked access to the 
remaining content for adults and minors, even if 
most of the content in the fora was not harmful to 
minors. (Farmer Testimony; Olsen Testimony). 

4. Security Issues 

59. COPA requires that content providers or Web site 
operators take the necessary precautions to pre- 
vent unauthorized access to the information they 
receive from users during the age verification pro- 
cess. Implementing security measures to safe- 
guard the information provided by users, such as 
the use of encryption methods, SSLs, and secure 
servers, will impose some additional technological 
burdens and economic costs on Web site operators. 

5. Effect of Complying with COPA on Traffic 

60. Hoffman testified that she concluded in light of 
consumer behavior on the Web that COPA would 

80a 

have a negative effect on users because it will 
reduce anonymity to obtain the speech and reduce 
the flow experience of the user, resulting in a loss 
of traffic to Web sites. She testified that it was her 
prediction that content providers would have to 
adopt one or more methods to comply with COPA 
by (1) eliminating content on the site that was, or 
potentially could be considered, harmful to minors, 
or (2) erect a age verification system on their Web 
site in front of harmful to minors materials, or (3) 
alter the questionable content to comply with 
COPA. Hoffman opined that whatever method of 
compliance a speaker elected, users may visit other 
sites which offered such material without a screen, 
which would result in loss of traffic to a site. 
(Hoffman Testimony). Olsen, one of the experts 
who testified for the defendant, conceded in his 
testimony that the number of users deterred from a 
site by registration requirements imposed by 
COPA could be in the thousands. (Olsen Testi- 
mony). 

61. Hoffman testified that she concluded that the out of 
pocket costs associated with complying with COPA 
did not constitute the real economic burden on 
content providers, but rather it was the economic 
harm that would result from loss of traffic to the 
site that constituted the burden. Even though a 
Web site operator could pass the cost of compliance 
with COPA on to the consumer, Hoffman testified 
that in general users would refuse to pay to access 
content on the site. 

62. Brian L. Blonder, an accountant with expertise in 
evaluating business plans and economic conduct, 

81a 

testified that in his opinion, COPA would not 
impose an unreasonable economic burden from 
either out-of-pocket costs or loss of viewers on the 
seven Web sites of the plaintiffs which he investi- 
gated, including ArtNet, CNET, Salon Magazine, A 
Different Light Bookstore, Sexual Health Net- 
work, Planet Out, and Free Speech Media. (Blonder 
Testimony and Supplemental Expert Report). 

63. It is reasonable to infer that the number of users 
deterred from a screened Web site or a screened 
portion of a Web site and the economic impact that 
such loss of viewers may have on a Web site 
depends in part on the number of users that visit 
the site, the strength of the motivation of the user 
to access the screened material, and the economic 
resources and revenues available to the Web site 
from other sources and content. The plaintiffs have 
shown that they are likely to convince the Court 
that implementing the affirmative defenses in 
COPA will cause most Web sites to lose some adult 
users to the portions of the sites that are behind 
screens. 

E. Blocking or Filtering Software 

64. The plaintiffs contend that a lesser restrictive 
means to achieve the goal of Congress of restricting 
the access of minors to materials that are harmful 
to them is the use of “blocking” or “filtering” tech- 
nology. 

65. It appears that the parties do not dispute that 
blocking or filtering software may be used to block 
Web sites and other content on the Internet that is 
inappropriate for minors. Such technology may be 

82a 

downloaded and installed on a user’s home com- 
puter at a price of approximately $40.00. Alterna- 
tively, it may operate on the user’s ISP. Blocking 
technology can be used to block access by minors to 
whole sites or pages within a site. (Olsen Testi- 
mony). Blocking and filtering software will block 
minors from accessing harmful to minors materials 
posted on foreign Web sites, non-profit Web sites, 
and newsgroups, chat, and other materials that 
utilize a protocol other than HTTP. (Olsen Testi- 
mony). 

66. It appears undisputed that blocking and filtering 
technology is not perfect in that it is possible that 
some Web sites that may be deemed inappropriate 
for minors may not be blocked while some Web 
sites that are not inappropriate for minors may be 
blocked. In addition, a minor’s access to the Web is 
not restricted if she accesses the Web from an 
unblocked computer or through another ISP. It is 
possible that a computer-savvy minor with some 
patience would be able to defeat the blocking 
device. (Magid Testimony). No evidence was pre- 
sented to the Court as to the percentage of time 
that blocking and filtering technology is over- or 
underinclusive. 

67. Several Web sites associated with plaintiffs or 
declarants in this litigation, including Web sites of 
Condomania, Electronic Frontier Foundation, 
RiotGrrl, Sexual Health Network, A Different 
Light, PlanetOut, and Philadelphia Gay News, are 
currently blocked by SurfWatch and Cyberpatrol, 
which are two blocking or filtering programs. (Joint 
Stipulation Exhibit 3 ¶¶ 45-51). 

83a 

VI. Analysis of the Motion for Preliminary Injunction 
and Conclusions of Law 

A. Substantial Likelihood of Success on the Merits 

For the purposes of the motion for preliminary 
injunction, the Court will focus its analysis on the claim 
of plaintiffs that COPA is unconstitutional on its face 
for violating the First Amendment rights of adults. 
The first task of the Court is to determine the level of 
scrutiny to apply to COPA; then the Court must apply 
that level of scrutiny to the statute to determine 
whether plaintiffs are likely to succeed on their claim 
that it does not pass constitutional muster. 

1. Standard of Scrutiny 

COPA is a content-based regulation of speech which 
is protected at least as to adults. Although there are 
lower standards of scrutiny where the regulation of 
general broadcast media or “commercial” speech, that 
is, speech that proposes a commercial transaction, are 
involved, neither is appropriate here. In Reno I, the 
Supreme Court found that the case law provided “no 
basis for qualifying the level of First Amendment scru- 
tiny that should be applied to this medium,” rejecting 
the argument that the lowered level of scrutiny applied 
to the broadcasting medium should be applied to the 
Internet. See Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 
2329, 2344, 138 L.Ed.2d 874 (1997). The defendant 
asserted in her brief that the statute may be subject to 
the lower level of scrutiny which has been applied to 
the regulation of “commercial speech;” however, the 
defendant did not press that position for the purposes 
of the temporary restraining order, nor did she argue 
this position at the preliminary injunction hearing. 

84a 

Further, it is clear that the case law setting forth the 
standard of scrutiny for the regulation of commercial 
speech is inapplicable to the statute before the Court. 

Nonobscene sexual expression is protected by the 
First Amendment. See Sable Communications of 
California, Inc. v. FCC, 492 U.S. 115, 126, 109 S. Ct. 
2829, 106 L.Ed.2d 93 (1989). As a content-based regu- 
lation of such expression, COPA is presumptively in- 
valid and is subject to strict scrutiny by this Court. See 
R.A.V. v. City of St. Paul, 505 U.S. 377, 381, 112 S. Ct. 
2538, 120 L.Ed.2d 305 (1992); Sable, 492 U.S. at 126, 109 
S. Ct. 2829. “As a matter of constitutional tradition, in 
the absence of evidence to the contrary, we presume 
that governmental regulation of the content of speech is 
more likely to interfere with the free exchange of ideas 
than to encourage it.” Reno v. ACLU, 521 U.S. 844, 117 
S. Ct. 2329, 2351, 138 L.Ed.2d 874 (1997). Thus, the 
content of such protected speech may be regulated in 
order to promote a compelling governmental interest 
“if it chooses the least restrictive means to further the 
articulated interest.” Sable, 492 U.S. at 126, 109 S. Ct. 
2829 (“It is not enough to show that the Government’s 
ends are compelling; the means must be carefully 
tailored to achieve those ends.”). Attempts of Congress 
to serve compelling interests must be narrowly tailored 
to serve those interests without unnecessarily interfer- 
ing with First Amendment freedoms. Id. Thus, the 
burden imposed on speech must be outweighed by the 
benefits gained by the challenged statute. See Elrod v. 
Burns, 427 U.S. 347, 363, 96 S. Ct. 2673, 49 L.Ed.2d 547 
(1976). The Supreme Court has repeatedly stated that 
the free speech rights of adults may not be reduced to 
allow them to read only what is acceptable for children. 
See, e.g., Sable, 492 U.S. at 127, 109 S. Ct. 2829 (citing 

85a 

Butler v. Michigan, 352 U.S. 380, 383, 77 S. Ct. 524, 1 
L.Ed.2d 412 (1957) (reversing a conviction under a 
statute which made it an offense to make available to 
the public materials found to have a potentially harmful 
influence on minors as an effort to “burn the house to 
roast the pig”)). 

2. Burden on Speech Imposed by COPA 

The first step in determining whether a statute 
passes strict scrutiny is to assess the burden the 
statute places on speech. A statute which has the effect 
of deterring speech, even if not totally suppressing 
speech, is a restraint on free expression. See Fabulous 
Associates, Inc. v. Pennsylvania Public Utility Com- 
mission, 896 F.2d 780, 785 (3d Cir. 1990). One such 
deterrent can be a financial disincentive created by the 
statute. “A statute is presumptively inconsistent with 
the First Amendment if it imposes a financial burden on 
speakers because of the content of their speech.” 
Simon & Schuster, Inc. v. Members of the New York 
State Crime Victims Board, 502 U.S. 105, 115, 112 
S. Ct. 501, 116 L.Ed.2d 476 (1991). The Court in 
Erznoznik noted that the regulation on speech at issue 
left the speaker “faced with an unwelcome choice: to 
avoid prosecution of themselves and their employees 
they must either restrict their movie offerings or 
construct adequate protective fencing which may be 
extremely expensive or even physically impracticable.” 
Erznoznik v. City of Jacksonville, 422 U.S. 205, 217, 95 
S. Ct. 2268, 45 L.Ed.2d 125 (1975). 

In Simon & Schuster, in which the constitutionality 
of a New York statute which required that the pro- 
ceeds of any publication of any person who committed a 
crime be placed in an escrow account for the benefit of 

86a 

the victims of the crime, the Supreme Court noted that 
“[a] statute is presumptively inconsistent with the First 
Amendment if it imposes a financial burden on speakers 
because of the content of their speech.” 502 U.S. at 115, 
112 S. Ct. 501. “In the context of financial regulation, it 
bears repeating, . . . that the government’s ability to 
impose content-based burdens on speech raises the 
specter that the government may effectively drive 
certain ideas or viewpoints from the marketplace.” Id. 
at 116, 112 S. Ct. 501. The Court considered this law to 
be similar to an unconstitutional tax based on the con- 
tent of speech, as “[b]oth forms of financial burden 
operate as disincentives to speak.” Id. at 117, 112 S. Ct. 
501. The Supreme Court found that the challenged law 
established a financial disincentive to create or publish 
works with a particular content, and as such, the 
government must justify such differential treatment by 
showing that the statute was necessary to serve a 
compelling interest and it narrowly drawn to achieve 
that end. Id., at 118, 112 S. Ct. 501. 

In Fabulous Associates, the Court of Appeals for the 
Third Circuit considered the constitutionality of an 
amendment to the Pennsylvania Public Utility Act 
which required adults who wished to listen to sexually 
explicit recorded telephone messages to apply for an 
access code to receive such messages. The court noted 
that requiring an adult to obtain an access code exerted 
an inhibitory effect on speech, which “raises issues 
comparable to those raised by direct [government] im- 
posed burdens or restrictions.” Id. The court affirmed 
the district court’s finding that access codes would chill 
or inhibit potential adult users of dial-a-porn, based on 
testimony that “impulse callers” would not access the 
material if they must apply for an access code, as well 

87a 

as evidence that the plaintiffs’ revenues dropped to $0 
when they switched to an identification number system 
and the lack of any evidence from the Commonwealth 
to rebut the showing by plaintiffs. Id. at 785-86. 

The district court in Fabulous Associates had found 
that the statute would impose additional costs on 
potential customers who owned rotary phones because 
they would need to purchase equipment so that the 
phone could utilize the access code. Id. at 786. The cost 
of the equipment ranged from $19.95 to $29.95. Id. The 
Court of Appeals observed that while this may not 
seem overly burdensome, the “First Amendment is not 
available ‘merely to those who can pay their own way.’ ” 
Id. at 787 (quoting Murdock v. Pennsylvania, 319 U.S. 
105, 111, 63 S. Ct. 870, 87 L.Ed. 1292 (1943)). The court 
noted that this cost may be a deterrent to some users 
who may call the services on impulse or too infre- 
quently to justify the extra cost. Id. at 787. 

In Reno I, in determining whether the CDA imposed 
a burden on constitutionally protected adult speech, the 
Supreme Court adopted the district court’s finding that 
“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.” 521 U.S. 844, 117 S. Ct. 
2329, 2347, 138 L.Ed.2d 874 (1997). The district court 
also found that there was “no effective way to deter- 
mine the age of a user who is accessing material 
through e-mail, mail exploders, newsgroups, or chat 
rooms.” Id. The Supreme Court noted that this limita- 
tion, as well as the prohibitively high economic burden 
of age verification for some sites, “must inevitably cur- 

88a 

tail a significant amount of adult communication on the 
Internet.” Id. 

Much of the evidence and argument at the prelimi- 
nary injunction hearing here focused on the economic 
costs that would be imposed on Web site operators and 
content providers, and particularly the plaintiffs in this 
action, in complying with COPA, including out-of- 
pocket costs of implementing the affirmative defenses, 
loss of revenue and potential closure of Web sites that 
could occur, and the ability of specific plaintiffs to 
shoulder these economic costs as incremental costs of 
running a commercial Web site. The defendant argues 
that the economic and technological burden imposed by 
COPA is not substantial and does not impose an 
unreasonable economic burden on Web site operators. 

The economic costs associated with compliance with 
COPA are relevant to the Court’s determination of the 
burden imposed by the statute. However, even if this 
Court should conclude that most of the plaintiffs would 
be able to afford the cost of implementing and main- 
taining their sites if they add credit card or adult 
verification screens, such conclusion is not dispositive. 
First Amendment jurisprudence indicates 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 plaintiffs, or of other Web site operators and 
content providers not before the Court. The protection 
provided by the First Amendment in this context is not 
diminished because the speakers affected by COPA 
may be commercial entities who speak for a profit. 
“The government’s power to impose content-based 
financial disincentives on speech surely does not vary 

89a 

with the identity of the speaker.” See Simon & 
Schuster, at 117, 112 S. Ct. 501. Strict scrutiny is 
required, not because of the risk of driving certain 
commercial Web sites out of business, but the risk of 
driving this particular type of protected speech from 
the marketplace of ideas. 

In assessing the burden placed on protected speech 
by COPA, it is necessary to take into consideration the 
unique factors that affect communication in the new and 
technology-laden medium of the Web. Each medium of 
expression “must be assessed for First Amendment 
purposes by standards suited to it, for each may pre- 
sent its own problems.” Southeastern Promotions, Ltd. 

v. Conrad, 420 U.S. 546, 557, 95 S. Ct. 1239, 43 L.Ed.2d 
448 (1975). For example, the plaintiffs have presented 
evidence that the nature of the Web and the Internet is 
such that Web site operators and content providers 
cannot know who is accessing their sites, or from 
where, or how old the users are, unless they take af- 
firmative steps to gather information from the user and 
the user is willing to given them truthful responses. In 
the same vein, it can be inferred that any barrier that 
Web site operators and content providers construct to 
bar access to even some of the content on their sites to 
minors will be a barrier that adults must cross as well. 

Evidence presented to this Court is likely to estab- 
lish at trial that the implementation of credit card or 
adult verification screens in 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. (Finding of Fact ¶¶ 61-62). The 
plaintiffs are likely to establish at trial that under 

90a 

COPA, Web site operators and content providers may 
feel an economic disincentive to engage in communi- 
cations that are or may be considered to be harmful to 
minors and thus, may self-censor the content of their 
sites. Further, the uncontroverted evidence showed 
that there is no way to restrict the access of minors to 
harmful materials in chat rooms and discussion groups, 
which the plaintiffs assert draw traffic to their sites, 
without screening all users before accessing any con- 
tent, even that which is not harmful to minors, or edit- 
ing all content before it is posted to exclude material 
that is harmful to minors. (Finding of Fact ¶ 59). This 
has the effect of burdening speech in these fora that is 
not covered by the statute. I conclude that based on 
the evidence presented to date, the plaintiffs have 
established a substantial likelihood that they will be 
able to show that COPA imposes a burden on speech 
that is protected for adults. The Court’s analysis then 
turns to the likelihood of plaintiff ’s ability to make a 
successful showing that the statute is narrowly tailored 
to a compelling government interest. 

3. Compelling Government Interest 

It is clear that Congress has a compelling interest in 
the protection of minors, including shielding them from 
materials that are not obscene by adult standards. See 
Sable, 492 U.S. at 126, 109 S. Ct. 2829 (citing Ginsberg 

v. New York, 390 U.S. 629, 639-40, 88 S. Ct. 1274, 20 
L.Ed.2d 195 (1968)). There is nothing in the legislative 
history of COPA that indicates that the intention of 
Congress was anything but the protection of minors. 
Congress recognized that the Web is widely accessible 
to minors and pornography is widely available on the 
Web. See H.R. Rep. No.105-775 at 9-10. Congress 

91a 

expressed that its intent in COPA was to require “the 
commercial pornographer to put sexually explicit 
messages ‘behind the counter’ ” on the Web, similar to 
existing requirements in some states that such material 
to be held behind the counter or sold in a paper 
wrapper in a physical store. Id. at 15. 

4. Narrow Tailoring and Least Restrictive Means 

While the plaintiffs have the burden in the context of 
the motion for preliminary injunction of showing 
success on the merits of their claims, the defendant 
ultimately will bear the burden of establishing that 
COPA is the least restrictive means and narrowly 
tailored its objective, which the defendant argues is the 
regulation of commercial pornographers. See Elrod v. 
Burns, 427 U.S. 347, 362, 96 S. Ct. 2673, 49 L.Ed.2d 547 
(1976). In Elrod, the Supreme Court described “least 
restrictive means” by stating that “if the State has open 
to it a less drastic way of satisfying its legitimate inter- 
ests, it may not choose a legislative scheme that broadly 
stifles the exercise of fundamental personal liberties.” 
Id. at 363, 96 S. Ct. 2673. Further, to survive constitu- 
tional challenge the statute “must further some vital 
government end by a means that is least restrictive of 
[First Amendment freedoms] in achieving that end, and 
the benefit gained must outweigh the loss of constitu- 
tionally protected rights.” Id. 

In Simon & Schuster, 502 U.S. 105, 121, 112 S. Ct. 
501, 116 L.Ed.2d 476 (1991), the Supreme Court, in 
holding that the “Son of Sam” law, which restricted the 
ability of a person who had committed a crime to profit 
by writing about it, was significantly overinclusive and 
thus not narrowly tailored, noted “that had the law 
been in effect at the time and place of publication, it 

92a 

would have escrowed payment for such works as The 
Autobiography of Malcolm X, . . . Civil Disobedience, 

. . . even the Confessions of St. Augustine.” While the 
Court recognized that this argument was “hyperbole,” 
the Court noted that the law clearly reached a wide 
range of literature that was outside the scope of the 
statute’s interest. Id. at 122, 112 S. Ct. 501. 

In Fabulous Associates, the Court of Appeals for the 
Third Circuit upheld the district court’s finding that a 
less restrictive means was available other than requir- 
ing access codes because calls to dial-a-porn could be 
pre-blocked until a customer requested otherwise. Id. 
at 787. The court held that even if some chill was 
associated with pre-blocking, it did not entail additional 
costs to the user nor did it require that the message 
provider purchase new equipment and absorb increased 
operating costs. Id. at 788. 

The Fabulous Associates court rejected the Com- 
monwealth’s argument that central blocking was not as 
effective as the access code requirement of the statute 
because minors with phone lines could request unblock- 
ing or gain access to unblocked phones, or that a parent 
who chooses to unblock his phone for the parent’s use 
would place the dial-a-porn messages within the reach 
of minors. Id. at 788. The court noted that “[i]n this 
respect, the decision a parent must make is comparable 
to whether to keep sexually explicit books on the shelf 
or subscribe to adult magazines. No constitutional 
principle is implicated. The responsibility for making 
such choices is where our society has traditionally 
placed it—on the shoulders of the parent.” Id. 

In evaluating the proposed less restrictive means, 
the court acknowledged that some minors will access 

93a 

the dial-a-porn message if they are determined to do so; 
however, the court noted that preventing “ ‘a few of the 
most enterprising and disobedient young people’ ” from 
obtaining access to these messages did not justify a 
statute that had the “ ‘invalid effect of limiting the 
content of adult telephone conversations to that which 
is suitable for children.’ ” 

Id. at 788 (quoting Sable 
Communications v. FCC, 492 U.S. 115, 109 S. Ct. 2829, 
2838, 2839, 106 L.Ed.2d 93 (1989)). 

Here, this Court’s finding that minors may be able to 
gain access to harmful to minors materials on foreign 
Web sites, non-commercial sites, and online via pro- 
tocols other than http demonstrates the problems this 
statute has with efficaciously meeting its goal. More- 
over, there is some indication in the record that minors 
may be able to legitimately possess a credit or debit 
card and access harmful to minors materials despite the 
screening mechanisms provided in the affirmative 
defenses. See Reno I, 117 S. Ct. at 2349 (noting that 
“[e]ven with respect to the commercial pornographers 
that would be protected by the defense[s] [provided in 
the CDA], the Government failed to adduce any evi- 
dence that these verification techniques actually 
preclude minors from posing as adults”). These factors 
reduce the benefit that will be realized by the imple- 
mentation of COPA in preventing minors from access- 
ing such materials online. 

On the record to date, it is not apparent to this Court 
that the defendant can meet its burden to prove that 
COPA is the least restrictive means available to 
achieve the goal of restricting the access of minors to 
this material. Of course, the final determination must 
await trial on the merits. The plaintiffs suggest that an 

94a 

example of a more efficacious and less restrictive means 
to shield minors from harmful materials is to rely upon 
filtering and blocking technology.6 Evidence was 
presented that blocking and filtering software is not 
perfect, in that it is possible that some appropriate sites 
for minors will be blocked while inappropriate sites may 
slip through the cracks. However, there was also 
evidence that such software blocks certain sources of 
content that COPA does not cover, such as foreign sites 
and content on other protocols. (Finding of Fact ¶ 66). 
The record before the Court reveals that 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 con- 
stitutionally protected speech that COPA imposes on 
adult users or Web site operators. Such a factual con- 
clusion is at least some evidence that COPA does not 
employ the least restrictive means. 

Beyond the debate over the relative efficacy of 
COPA compared to blocking and filtering technology, 
plaintiffs point to other aspects of COPA which Con- 
gress could have made less restrictive. Notably, the 
sweeping category of forms of content that are prohib- 
ited—“ any communication, picture, image, graphic 
image file, article, recording, writing, or other matter of 
any kind” (emphasis added)—could have been less 
restrictive of speech on the Web and more narrowly 
tailored to Congress’ goal of shielding minors from 
pornographic teasers if the prohibited forms of content 
had included, for instance, only pictures, images, or 

6 The plaintiffs do not argue that Congress should statutorily 
require the use of such technology to shield minors from such 
materials. 

95a 

graphic image files, which are typically employed by 
adult entertainment Web sites as “teasers.” In addi- 
tion, perhaps the goals of Congress could be served 
without the imposition of possibly excessive and serious 
criminal penalties, including imprisonment and hefty 
fines, for communicating speech that is protected as to 
adults or without exposing speakers to prosecution and 
placing the burden of establishing an affirmative 
defense on them instead of incorporating the substance 
of the affirmative defenses in the elements of the crime. 

B. Irreparable Harm 

The plaintiffs have uniformly testified or declared 
that their fears of prosecution under COPA will result 
in the self-censorship of their online materials in an 
effort to avoid prosecution, and this Court has con- 
cluded in the resolution of the motion to dismiss that 
such fears are reasonable given the breadth of the 
statute. Such a chilling effect could result in the censor- 
ing of constitutionally protected speech, which consti- 
tutes an irreparable harm to the plaintiffs. “It is well 
established that the loss of First Amendment freedoms, 
for even minimal periods of time, unquestionably con- 
stitutes irreparable injury.” Hohe v. Casey, 868 F.2d 
69, 72,73 (3d Cir. 1989). For plaintiffs who choose not to 
self-censor their speech, they face criminal prosecution 
and penalties for communicating speech that is pro- 
tected for adults under the First Amendment, which 
also constitutes irreparable harm. 

96a 

C. Balance of Interests 

In deciding whether to issue injunctive relief, this 
Court must balance the interests and potential harm to 
the parties. It is well established that no one, the gov- 
ernment included, has an interest in the enforcement of 
an unconstitutional law. See ACLU v. Reno, 929 
F. Supp. 824, 849 (E.D. Pa. 1996). It follows in this con- 
text that the harm to plaintiffs from the infringement of 
their rights under the First Amendment clearly out- 
weighs any purported interest of the defendant. 

While the public certainly has an interest in protect- 
ing its minors, the public interest is not served by the 
enforcement of an unconstitutional law. Indeed, to the 
extent that other members of the public who are not 
parties to this lawsuit may be effected by this statute, 
the interest of the public is served by preservation of 
the status quo until such time that this Court may 
ultimately rule on the merits of plaintiffs’ claims at trial. 

VII. Conclusion 

The protection of children from access to harmful to 
minors materials on the Web, the compelling interest 
sought to be furthered by Congress in COPA, par- 
ticularly resonates with the Court. This Court and 
many parents and grandparents would like to see the 
efforts of Congress to protect children from harmful 
materials on the Internet to ultimately succeed and the 
will of the majority of citizens in this country to be 
realized through the enforcement of an act of Congress. 
However, the Court is acutely cognizant of its charge 
under the law of this country not to protect the 
majoritarian will at the expense of stifling the rights 

97a 

embodied in the Constitution. Even at this preliminary 
stage of the case, I borrow from Justice Kennedy, who 
faced a similar dilemma when the Supreme Court 
struck down a statute that criminalized the burning of 
the American flag: 

The case before us illustrates better than most that 
the judicial power is often difficult in its exercise. 
We cannot here ask another Branch to share 
responsibility, as when the argument is made that a 
statute is flawed or incomplete. For we are pre- 
sented with a clear and simple statute to be judged 
against a pure command of the Constitution. The 
outcome can be laid at no door but ours. 

The hard fact is that sometimes we must make deci- 
sions that we do not like. We make them because 
they are right, right in the sense that the law and 
the Constitution, as we see them, compel the result. 
And so great is our commitment to the process that, 
except in the rare case, we do not pause to express 
distaste for the result, perhaps for fear of under- 
mining a valued principle that dictates the decision. 
This is one of those rare cases. 

Texas v. Johnson, 491 U.S. 397, 420, 109 S. Ct. 2533, 105 
L.Ed.2d 342 (1989) (Kennedy, J., concurring). 

Despite the Court’s personal regret that this prelimi- 
nary injunction will delay once again the careful 
protection of our children, I without hesitation acknowl- 
edge the duty imposed on the Court and the greater 
good such duty serves. Indeed, perhaps we do the 
minors of this country harm if First Amendment 
protections, which they will with age inherit fully, are 
chipped away in the name of their protection. 

98a 

Based on the foregoing analysis, the motion to dis- 
miss the plaintiffs for lack of standing will be denied. 

Based on the foregoing findings and analysis, the 
Court concludes that the plaintiffs have established a 
likelihood of success on the merits, irreparable harm, 
and that the balance of interests, including the interest 
of the public, weighs in favor of enjoining the en- 
forcement of this statute pending a trial on the merits, 
and the motion of plaintiffs for a preliminary injunction 
will be granted. 

An appropriate Order follows. 

ORDER 

AND NOW, this 1st day of February, 1999, upon con- 
sideration of the motion of plaintiffs for a preliminary 
injunction and supporting brief (Document No. 73), the 
response of the defendant (Document No. 82), and the 
supplemental reply brief of the plaintiffs (Document 
No. 74), as well as the exhibits, declarations, and other 
evidence submitted by the parties, having held a 
hearing on this motion in which counsel for both sides 
presented evidence and argument, and for the reasons 
set forth in the accompanying Memorandum, it is 
hereby ORDERED that the motion is GRANTED and 
defendant Janet Reno, in her official capacity as 
Attorney General of the United States, and, pursuant 
to Federal Rule of Civil Procedure 65(d), defendant’s 
officers, agents, servants, employees, and attorneys, 
and those persons in active concert or participation 
with defendant who receive actual notice of this Order, 
are PRELIMINARILY ENJOINED from enforcing or 
prosecuting matters premised upon 47 U.S.C. § 231 of 

99a 

the Child Online Protection Act at any time7 for any 
conduct8 that occurs while this Order is in effect. This 

7 As noted by this Court in the Order granting the plaintiffs’ 
motion for a temporary restraining order on November 19, 1998, it 
appears from the arguments of the parties and research conducted 
by this Court that it is unclear whether a federal court has the 
power to enjoin prosecution under a statute for acts that occur 
during the pendency of the injunctive relief if the decision to enjoin 
enforcement of the statute is later reversed on appeal. See Edgar 

v. MITE Corporation, 457 U.S. 624, 647, 655, 102 S. Ct. 2629, 73 
L.Ed.2d 269 (1982) (Stevens, J., concurring) (asserting that a 
federal judge lacked the authority to enjoin later state prosecution 
under a state statute) (Marshall, J., dissenting) (asserting that 
federal judges have the power to grant such injunctive relief and if 
the order is ambiguous, it should be presumed to grant such relief). 
While there is no binding precedent that affirmatively establishes 
the power of a court to enter such an injunction, there is an indica- 
tion in the case law that plaintiffs who rely in their actions on judg- 
ments of the court and are later prosecuted for their actions after 
the judgment is reversed can be successful in raising the judgment 
of the court as a defense to prosecution. See Clarke v. U.S., 915 
F.2d 699 (D.C. Cir. 1990) (citing cases and noting that a federal 
judge enjoining a federal prosecution does not present the federal- 
ism concerns that were present in Edgar). Granting injunctive 
relief to the plaintiffs, who are raising a constitutional challenge to 
a criminal statute that imposes imprisonment and fines on its 
violators, that only immunizes them for prosecution during the 
pendency of the injunction, but leaves them open to potential 
prosecution later if the Order of this Court is reversed, would be 
hollow relief indeed for plaintiffs and members of the public 
similarly situated. Thus, the Court enjoins the defendant from 
enforcing COPA against acts which occur during the pendency of 
this Order, in an effort to tailor the relief to the realities of the 
situation facing the plaintiffs. 

8 The defendant urges this Court to bar enforcement of COPA, 
if at all, only as to the plaintiffs. However, the defendant has pre- 
sented no binding authority or persuasive reason that indicates 
that this Court should not enjoin total enforcement of COPA. See 
ACLU v. Reno, 929 F. Supp. 824, 883 (1996); Virginia v. American 

100a 

Order does not extend to or restrict any action by 
defendant in connection with any investigations or 
prosecutions concerning child pornography or material 
that is obscene under 47 U.S.C. § 231 or any other 
provisions of the United States Code. 

IT IS FURTHER ORDERED that the filing of a bond is 
waived.9 

IT IS FURTHER ORDERED that this preliminary 
injunction shall remain in effect until a final adjudica- 
tion of the merits of plaintiffs’ claims has been made. 

IT IS FURTHER ORDERED that, upon consideration 
of the motion of defendant to dismiss the complaint of 
plaintiffs for lack of standing (Document No. 50), the 
response of plaintiffs (Document No. 69), and the reply 
thereto (Document No. 81), for the reasons set forth in 
the accompanying Memorandum, the motion is 

DENIED. 

Booksellers Association, 484 U.S. 383, 392, 108 S. Ct. 636, 98 
L.Ed.2d 782 (1988) (noting that in the First Amendment context, 
“litigants . . . are permitted to challenge a statute not because of 
their own rights of free expression are violated, but because of a 
judicial prediction or assumption that the statute’s very existence 
may cause others not before the court to refrain from constitu- 
tionally protected speech or expression”) (internal quotations 
omitted). 

9 See ACLU v. Reno, 929 F. Supp. at 884 (citing Temple Uni- 
versity v. White, 941 F.2d 201, 220 (3d Cir. 1991)). 

101a 

APPENDIX C 

UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

CIVIL ACTION No. 98-5591 

AMERICAN CIVIL LIBERTIES UNION, ET AL. 

v. 

JANET RENO, IN HER OFFICIAL CAPACITY 
AS ATTORNEY GENERAL OF THE UNITED STATES 

Filed: Nov. 23, 1998 

MEMORANDUM 

Reed, J. 

November 20, 1998 

The plaintiffs, representing individuals and entities 
who are speakers and content providers on the World 
Wide Web (the “Web”), many of whom are seeking to 
make a profit, and users of the Web who use such sites, 
filed a complaint in this Court challenging the con- 
stitutionality of the recently enacted Child Online 
Protection Act (“COPA”) under the First and Fifth 
Amendments.1 The plaintiffs allege in their complaint 
that COPA infringes upon protected speech of adults 
and minors and that it is unconstitutionally vague. The 
plaintiffs sought a temporary restraining order to 

1 This Court has jurisdiction under 28 U.S.C. § 1331. 

102a 

prohibit the Attorney General from enforcing COPA, 
which was to go into effect on November 20, 1998. See 
Attachment A. This memorandum sets forth pursuant 
to Federal Rule of Civil Procedure 65(d) the reasons for 
the issuance of the temporary restraining order yester- 
day. (Document No. 29). 

COPA represents the efforts of Congress to remedy 
the constitutional defects in the Child Decency Act 
(“CDA”), the first attempt by Congress to regulate 
content on the Internet. The CDA was struck down by 
the Supreme Court in ACLU v. Reno, 117 S. Ct. 2329 
(1997) as violative of the First Amendment. Resolution 
of the motion for temporary restraining order is the 
first stepping stone in determining the constitutionality 
of COPA. 

To obtain a temporary restraining order, the plain- 
tiffs must prove four elements: (1) likelihood of success 
on the merits; (2) irreparable harm; (3) that less harm 
will result to the defendant if the TRO issues than to 
the plaintiffs if the TRO does not issue; and (4) that the 
public interest, if any, weighs in favor of plaintiff. See 
Drysdale v. Woerth, 1998 WL 647281, *1 (E.D. Pa.) 
(citing Pappan Enterprises, Inc. v. Hardees’s Food 
Systems, Inc., 143 F.3d 800, 803 (3d Cir. 1998)). The 
plaintiffs need not prove their whole case to show a 
likelihood of success on the merits. If the balance of 
hardships tips in favor of plaintiffs, then the plaintiffs 
must only raise “ ‘questions going to the merits so 
serious, substantial, difficult and doubtful, as to make 
them fair ground for litigation and thus for more 
deliberative investigation.’ ” ACLU v. Reno I, 1996 WL 
65464, *2 (E.D. Pa.) (quoting Hamilton Watch Co. v. 
Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953)). 

103a 

For the purposes of the resolution of this motion for a 
temporary restraining order, I assume that strict 
scrutiny should be applied to COPA to determine if it is 
narrowly tailored to achieve a compelling governmental 
interest.2 See ACLU v. Reno, 117 S. Ct 2329, 2344 
(1996) (concluding that the case law provided “no basis 
for qualifying the level of First Amendment scrutiny 
that should be applied to this medium”). In addition, 
the parties are in agreement that the “harmful to 
minors” speech described in COPA is protected speech 
as to adults. 

Nonobscene sexual expression is protected by the 
First Amendment. See Sable Communications of 
California, Inc. v. FCC, 492 U.S. 115, 126 (1989). Thus, 
the content of such protected speech may be regulated 
in order to promote a compelling governmental interest 
“if it chooses the least restrictive means to further the 
articulated interest.” Id. at 126 (“It is not enough to 
show that the Government’s ends are compelling; the 
means must be carefully tailored to achieve those 
ends.”). Attempts of Congress to serve these com- 
pelling interest must be narrowly tailored to serve 
those interests without unnecessarily interfering with 
First Amendment freedoms. Id. The Supreme Court 
has repeatedly stated that the free speech rights of 
adults may not be reduced to allow them to read only 
what is acceptable for children. Id. at 127 (citing Butler 

v. Michigan, 352 U.S. 380, 383 (1957) (reversing a 
conviction under a statute which made it an offense to 

2 The government asserts in its brief that the statute may be 
subject to the lower level of scrutiny which has been applied to 
“commercial speech;” however, the government did not press that 
position for the purposes of the temporary restraining order at the 
hearing. 

104a 

make available to the public materials found to have a 
potentially harmful influence on minors as an effort to 
“burn the house to roast the pig”)). 

It is clear that Congress has a compelling interest in 
the protection of minors, including shielding them from 
materials that are not obscene by adult standards. See 
id. at 126 (citing Ginsberg v. New York, 390 U.S. 629, 
639-40 (1968)). Thus, the issue for which the plaintiffs 
must show a likelihood of success on the merits is 
whether COPA is narrowly tailored to this interest. 
The defendant argued that COPA on its face is not a 
total ban on speech that is protected for adults because 
commercial communicators may avail themselves of the 
affirmative defenses to prosecution. The plaintiffs 
argue that COPA is not narrowly tailored to this legiti- 
mate, compelling interest because the affirmative de- 
fenses provided by the statute are technologically and 
economically unavailable to many of the plaintiffs and 
overly burdensome on protected speech. The plaintiffs 
further argue that speech that is protected as to adults 
will be chilled on the Web and COPA in effect will 
reduce the content of the Web to the level of what is 
acceptable for minors. Therefore, the plaintiffs argue, 
COPA unconstitutionally infringes upon speech that is 
protected as to adults. 

A statute which has the effect of deterring of speech, 
even if not the total suppression of the speech, is a 
restraint on free expression. See Erznoznik v. City of 
Jacksonville, 422 U.S. 205, 211 n.8 (1975) (considering 
the expense of erecting a wall around appellant’s drive- 
in theater in determining whether an ordinance pro- 
hibiting public display of films containing nudity was 
narrowly tailored) (citing Speiser v. Randall, 357 U.S. 

105a 

513 (1958)). The Court in Erznoznik noted that the 
regulation on speech at issue left the plaintiff “faced 
with an unwelcome choice: to avoid prosecution of 
themselves and their employees they must either 
restrict their movie offerings or construct adequate 
protective fencing which may be extremely expensive 
or even physically impracticable.” Erznoznik, 422 U.S. 
at 217. 

The plaintiffs presented testimony from principals of 
two named plaintiffs, Norman Laurila, founder and 
owner of A Different Light, and David Talbot, CEO and 
editor of Salon Magazine, from which I find that they 
had conducted sufficient investigations which led them 
to the reasonable conclusion that attempting to avail 
themselves of the affirmative defenses provided in 
COPA would cause serious and debilitating effects on 
their businesses. Based on the evidence before me, I 
am satisfied that plaintiffs have raised serious and sub- 
stantial questions as to the technological and economic 
feasibility of these affirmative defenses. (Testimony of 
Laurila; Testimony of Talbot). At least one other plain- 
tiff reached the same conclusion. (Declaration of Barry 
Steinhardt).3 Without these affirmative defenses, 
COPA on its face would prohibit speech which is pro- 
tected as to adults. Thus, I am satisfied that plaintiffs 

3 The defendant objected to certain statements made by declar- 
ants which contained hearsay or lacked foundation. To the extent 
that any of the declarations contained statements that contained 
hearsay or lacked foundation, those statements were not relied on 
by the Court; the declarations submitted by the plaintiffs were 
only received for the purpose of determining whether the declar- 
ant conducted an investigation which lead him to a reasonable 
conclusion about the effect on his business of complying with 
COPA. 

106a 

have shown a likelihood of success on the merits on 
their claim that COPA violates the First Amendment 
rights of adults.4 

The defendant notes that “it is far from clear that 
plaintiffs have standing” to pursue this litigation. 
(Def.’s Brief at 11). However, the defendant has sug- 
gested that for purposes of disposition of the motion for 
temporary restraining order, the Court should assume 
that some of the plaintiffs are entities covered by 
COPA that engage in activities regulated by COPA. 
(Def.’s Proposed Conclusions of Law ¶ 2). In addition, 
the Court concludes that for purposes of the temporary 
restraining order, the plaintiffs have raised serious and 
substantial questions as to whether some of the 
materials posted on their Web sites are covered by the 
Act as material harmful to minors. 

Because the plaintiffs have established to the sat- 
isfaction of the Court a likelihood of success on the 
merits of their challenge, they clear the remaining 
legally imposed hurdles to injunctive relief with ease. 

The plaintiffs have persuaded me that at least with 
respect to some plaintiffs, their fears of prosecution 
under COPA will result in the self-censorship of their 
online materials in an effort to avoid prosecution. This 
chilling effect will result in the censoring of consti- 
tutionally protected speech, which constitutes an 

4 This opinion does not purport to address the myriad of argu- 
ments presented by both sides, nor to address each of the grounds 
presented by the plaintiffs for invalidating the statute. Those 
arguments and claims will be dealt with by the Court at a later 
time to the extent that they are necessary to a full resolution of 
this case. 

107a 

irreparable harm to the plaintiffs. “It is well estab- 
lished that the loss of First Amendment freedoms, for 
even minimal periods of time, unquestionably consti- 
tutes irreparable injury.” Hohe v. Casey, 868 F.2d 69 at 
72, 73 (3d Cir. 1989). For plaintiffs who choose not to 
self-censor their speech, they face criminal prosecution 
and penalties for communicating speech that they have 
shown is likely to be protected under the First Amend- 
ment. 

In deciding whether to issue injunctive relief, I must 
balance the interests and potential harm to the parties. 
It is well established that no one, the government 
included, has an interest in the enforcement of an 
unconstitutional law. See ACLU v. Reno, 929 F. Supp. 
824, 849 (1996). It follows in this context that the harm 
to plaintiffs from the infringement of their rights under 
the First Amendment clearly outweighs any purported 
interest of the defendant. 

While the public certainly has an interest in protect- 
ing its minors, the public interest is not served by the 
enforcement of an unconstitutional law. Indeed, to the 
extent that other members of the public who are not 
parties to this lawsuit may be effected by this statute, 
the interest of the public is served by preservation of 
the status quo until such time that this Court, with the 
benefit of a fuller factual record and thorough advocacy 
from the parties, may more closely examine the 
constitutionality of this statute. 

Based on the foregoing findings and conclusions that 
the plaintiffs have established a likelihood of success on 
the merits and irreparable harm, and that the balance 
of interests, including the interest of the public, weighs 
in favor of enjoining the enforcement of this statute, the 

108a 

motion for a temporary restraining order was granted 
in an Order dated November 19, 1998 (Document No. 

29), a copy of which is attached to this Memorandum as 
Attachment B. 

/s/ LOWELL A. REED, JR. 

LOWELL A. REED, JR. 

109a 

ATTACHMENT A 

Excerpts from the Child Online Protection Act 

In what will be codified as 47 U.S.C. § 231, COPA 
provides that: 

(1) PROHIBITED CONDUCT.-Whoever knowingly 
and with knowledge of the character of the material, 
in interstate or foreign commerce by means of the 
World Wide Web, makes any communication for 
commercial purposes that is available to any minor 
and that includes any material that is harmful to 
minors shall be fined not more than $50,000, 
imprisoned not more than 6 months, or both. 

(2) INTENTIONAL VIOLATIONS.-In addition to 
the penalties under paragraph (1), whoever inten- 
tionally violates such paragraph shall be subject to a 
fine of not more than $50,000 for each violation. For 
purposes of this paragraph, each day of violation 
shall constitute a separate violation. 

(3) CIVIL PENALTY.-In addition to the penalties 
under paragraphs (1) and (2), whoever violates 
paragraph (1) shall be subject to a civil penalty of 
not more than $50,000 for each violation. For pur- 
poses of this paragraph, each day of violation shall 
constitute a separate violation. 

COPA specifically provides that a person shall be 
considered to make a communication for commercial 
purposes “only if such person is engaged in the business 
of making such communication.” 47 U.S.C. §231(e)(2)(A). 
A person will be deemed to be “engaged in the busi- 
ness” if the 

110a 

person who makes a communication, or offers to 
make a communication, by means of the World Wide 
Web, that includes any material that is harmful to 
minors, devotes time, attention, or labor to such 
activities, as a regular course of such person’s trade 
or business, with the objective of earning a profit as 
a result of such activities (although it is not 
necessary that the person make a profit or that the 
making or offering to make such communications be 
the person’s sole or principal business or source of 
income). A person may be considered to be engaged 
in the business of making, by means of the World 
Wide Web, communications for commercial pur- 
poses that include material that is harmful to 
minors, only if the person knowingly causes the 
material that is harmful to minors to be posted on 
the World Wide Web or knowingly solicits such 
material to be posted on the World Wide Web. 

47 U.S.C. § 231(e)(2)(B). 

Congress defined material that is harmful to minors 
as: 

any communication, picture, image, graphic image 
file, article, recording, writing, or other matter of 
any kind that is obscene or that- 
(A) the average person, applying contemporary 
community standards, would find, taking the mate- 
rial as a whole and with respect to minors, is 
designed to appeal to, or is designed to pander to, 
the prurient interest; 

(B) depicts, describes, or represents, in a manner 
patently offensive with respect to minors, an actual 

111a 

or simulated sexual act or sexual contact, an actual 
or simulated normal or perverted sexual act, or a 
lewd exhibition of the genitals or post-pubescent 
female breast; and 

(C) taken as a whole, lacks serious literary, artistic, 
political, or scientific value for minors. 

Id. at § 231(e)(6). Under COPA, a minor is any person 
under 17 years of age. Id. at § 231(e)(7). 

COPA provides communicators on the Web for com- 
mercial purposes affirmative defenses to prosecution 
under the statute. Section 231 (c) provides that: 

(c) AFFIRMATIVE DEFENSE.— 

(1) DEFENSE.-It is an affirmative defense to 
prosecution under this section that the defendant, in 
good faith, has restricted access by minors to 
material that is harmful to minors— 

(A) by requiring use of a credit card, debit account, 
adult access code, or adult personal identification 
number; 

(B) by accepting a digital certificate that verifies 
age; or 

(C) by any other reasonable measures that are 
feasible under available technology. 

112a 

ATTACHMENT B 

UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

CIVIL ACTION No. 98-5591 

AMERICAN CIVIL LIBERTIES UNION, ET AL. 

v. 

JANET RENO, IN HER OFFICIAL CAPACITY 
AS ATTORNEY GENERAL OF THE UNITED STATES 

ORDER 

AND NOW, this 19th day of November, 1998, upon 
consideration of the motion of plaintiffs for a temporary 
restraining order, the response of the defendant, the 
exhibits and declarations submitted by the parties, 
having held a hearing on this date in which counsel for 
both sides presented evidence and argument, and 
having found and concluded, for the specific reasons 
required under Federal Rule of Civil Procedure 65(b) 
set forth in a Memorandum to be issued forthwith, that 
plaintiffs have shown (1) a likelihood of success on the 
merits of at least some of their claims, (2) that they will 
suffer irreparable harm if a temporary restraining 
order is not issued, and (3) that the balance of harms 
and the public interest weigh in favor of granting the 
temporary restraining order, it is hereby ORDERED 

that the motion is GRANTED and defendant 
Janet Reno, in her official capacity as Attorney 

113a 

General of the United States, and, pursuant to Federal 
Rule of Civil Procedure 65(d), defendant’s officers, 
agents, servants, employees, and attorneys, and those 
persons in active concert or participation with 
defendant who receive actual notice of this Order, 
are TEMPORARILY RESTRAINED from enforcing 
or prosecuting matters premised upon 47 U.S.C. § 
231 of the Child Online Protection Act at any time1 

1 It appears from the arguments of the parties and research 
conducted by this Court that it is unclear whether a federal court 
has the power to enjoin prosecution under a statute for acts that 
occur during the pendency of the injunctive relief if the decision to 
enjoin enforcement of the statute is later reversed on appeal. See 
Edgar v. MITE Corporation, 457 U.S. 624, 647, 655 (1982) 
(Stevens, J., concurring) (asserting that a federal judge lacked the 
authority to enjoin later state prosecution under a state statute) 
(Marshall, J., dissenting) (asserting that federal judges have the 
power to grant such injunctive relief and if the order is ambiguous, 
it should be presumed to grant such relief ). While there is no 
binding precedent that affirmatively establishes the power of a 
court to enter such an injunction, there is an indication in the case 
law that plaintiffs who rely in their actions on judgments of the 
court and are later prosecuted for their actions after the judgment 
is reversed can be successful in raising the judgment of the court 
as a defense to prosecution. See Clarke v. U.S., 915 F.2d 699 (D.C. 
Cir. 1990) (citing cases and noting that a federal judge enjoining a 
federal prosecution does not present the federalism concerns that 
were present in Edgar). Granting injunctive relief to the plaintiffs, 
who are raising a constitutional challenge to a criminal statute that 
imposes imprisonment and fines on its violators, that only immu- 
nizes them for prosecution during the pendency of the injunction, 
but leaves them open to potential prosecution later if the Order of 
this Court is reversed, would be hollow relief indeed for plaintiffs 
and members of the public similarly situated. Thus, the Court 
enjoins the defendant from enforcing COPA against acts which 
occur during the pendency of this Order, in an effort to tailor the 
relief to the realities of the situation facing the plaintiffs. 

114a 

for any conduct2 that occurs while this Order is in 
effect. This Order does not extend to or restrict any 
action by defendant in connection with any investiga- 
tions or prosecutions concerning child pornography or 
material that is obscene under 47 U.S.C. § 231 or any 
other provisions of the United States Code. 

IT IS FURTHER ORDERED that the filing of a bond is 
waived.3 

IT IS FURTHER ORDERED that this temporary 
restraining order shall remain in effect for ten days 
which, calculated according to Federal Rule of Civil 
Procedure 6(a), expires on Friday, December 4, 1998. 

The Court may modify this Order as the ends of 
justice require. 

/s/ LOWELL A. REED, JR. 

LOWELL A. REED, JR. 

2 The defendant urges this Court to bar enforcement of COPA, 
if at all, only as to the plaintiffs. However, the defendant has 
presented no binding authority or persuasive reason that indicates 
that this Court should not enjoin total enforcement of COPA. See 
ACLU v. Reno, 929 F. Supp. 824, 883 (1996); Virginia v. American 
Booksellers Association, 484 U.S. 383, 392 (1988) (noting that in 
the First Amendment context, “litigants . . . are permitted to 
challenge a statute not because of their own rights of free expres- 
sion are violated, but because of a judicial prediction or assumption 
that the statute’s very existence may cause others not before the 
court to refrain from constitutionally protected speech or expres- 
sion”) (internal quotations omitted). 

3 See ACLU v. Reno, 929 F. Supp. at 884 (citing Temple Uni- 
versity v. White, 941 F.2d 201, 220 (3d Cir. 1991)). 

115a 

Section 231 note of Title 47 of the United States Code 
(Supp. IV 1998) Congressional Findings provides as 
follows: 

CONGRESSIONAL FINDINGS 

Pub. L. 105-277, div. C, title XIV, § 1402, Oct. 12, 
1998, 112 Stat. 2681-736, provided that: “The Congress 
finds that— 

“(1) while custody, care, and nurture of the child 
resides first with the parent, the widespread 
availability of the Internet presents opportunities 
for minors to access materials through the World 
Wide Web in a manner that can frustrate parental 
supervision or control; 

“(2) the protection of the physical and psy- 
chological well-being of minors by shielding them 
from materials that are harmful to them is a com- 
pelling governmental interest; 

“(3) to date, while the industry has developed 
innovative ways to help parents and educators 
restrict material that is harmful to minors through 
parental control protections and self-regulation, 
such efforts have not provided a national solution to 
the problem of minors accessing harmful material on 
the World Wide Web; 

“(4) a prohibition on the distribution of material 
harmful to minors, combined with legitimate de- 
fenses, is currently the most effective and least 
restrictive means by which to satisfy the compelling 
government interest; and 

116a 

“(5) notwithstanding the existence of protections 
that limit the distribution over the World Wide Web of 
material that is harmful to minors, parents, educators, 
and industry must continue efforts to find ways to 
protect children from being exposed to harmful 
material found on the internet.” 

117a 

APPENDIX D 

Section 231 of Title 47 of the United States Code 
(Supp. IV 1998) provides as follows: 

Restriction of access by minors to materials commer- 
cially distributed by means of World Wide Web that are 
harmful to minors 

(a) Requirement to restrict access 

(1) Prohibited conduct 

Whoever knowingly and with knowledge of the 
character of the material, in interstate or foreign 
commerce by means of the World Wide Web, makes 
any communication for commercial purposes that is 
available to any minor and that includes any 
material that is harmful to minors shall be fined not 
more than $50,000, imprisoned not more than 6 
months, or both. 

(2) Intentional violations 

In addition to the penalties under paragraph (1), 
whoever intentionally violates such paragraph shall 
be subject to a fine of not more than $50,000 for each 
violation. For purposes of this paragraph, each day 
of violation shall constitute a separate violation. 

(3) Civil penalty 

In addition to the penalties under paragraphs (1) 
and (2), whoever violates paragraph (1) shall be 
subject to a civil penalty of not more than $50,000 
for each violation. For purposes of this paragraph, 
each day of violation shall constitute a separate 
violation. 

118a 

(b) Inapplicability of carriers and other service pro- 
viders 

For purposes of subsection (a) of this section, a 
person shall not be considered to make any com- 
munication for commercial purposes to the extent that 
such person is— 

(1) a telecommunications carrier engaged in the 
provision of a telecommunications service; 

(2) a person engaged in the business of providing 
an Internet access service; 

(3) a person engaged in the business of providing 
an Internet information location tool; or 

(4) similarly engaged in the transmission, storage, 
retrieval, hosting, formatting, or translation (or any 
combination thereof ) of a communication made by 
another person, without selection or alteration of the 
content of the communication, except that such person’s 
deletion of a particular communication or material made 
by another person in a manner consistent with sub- 
section (c) or section 230 of this title shall not constitute 
such selection or alteration of the content of the com- 
munication. 

119a 

(c) Affirmative defense 

(1) Defense 

It is an affirmative defense to prosecution under this 
section that the defendant, in good faith, has restricted 
access by minors to material that is harmful to 
minors— 

(A) by requiring use of a credit card, debit 
account, adult access code, or adult personal identi- 
fication number; 

(B) by accepting a digital certificate that veri- 
fies age; or 

(C) by any other reasonable measures that are 
feasible under available technology. 

(2) Protection for use of defenses 

No cause of action may be brought in any court or 
administrative agency against any person on account of 
any activity that is not in violation of any law 
punishable by criminal or civil penalty, and that the 
person has taken in good faith to implement a defense 
authorized under this subsection or otherwise to 
restrict or prevent the transmission of, or access to, a 
communication specified in this section. 

(d) Privacy protection requirements 

(1) Disclosure of information limited 

A person making a communication described in sub- 
section (a) of this section— 

120a 

(A) shall not disclose any information collected 
for the purposes of restricting access to such com- 
munications to individuals 17 years of age or older 
without the prior written or electronic consent of— 

(i) the individual concerned, if the individual 
is an adult; or 

(ii) the individual’s parent or guardian, if the 
individual is under 17 years of age; and 

(B) shall take such actions as are necessary to 
prevent unauthorized access to such information by a 
person other than the person making such com- 
munication and the recipient of such communication. 

(2) Exceptions 

A person making a communication described in 
subsection (a) of this section may disclose such infor- 
mation if the disclosure is— 

(A) necessary to make the communication or 
conduct a legitimate business activity related to 
making the communication; or 

(B) made pursuant to a court order authorizing 
such disclosure. 

121a 

(e) Definitions 

For purposes of this subsection,1 the following defini- 
tions shall apply: 

(1) By means of the World Wide Web 

The term “by means of the World Wide Web” 
means by placement of material in a computer 
server-based file archive so that it is publicly 
accessible, over the Internet, using hypertext trans- 
fer protocol or any successor protocol. 

(2) Commercial purposes; engaged in the business 

(A) Commercial purposes 

A person shall be considered to make a 
communication for commercial purposes only if 
such person is engaged in the business of making 
such communications. 

(B) Engaged in the business 

The term “engaged in the business” means that 
the person who makes a communication, or offers 
to make a communication, by means of the World 
Wide Web, that includes any material that is 
harmful to minors, devotes time, attention, or 
labor to such activities, as a regular course of such 
person’s trade or business, with the objective of 
earning a profit as a result of such activities 
(although it is not necessary that the person make 
a profit or that the making or offering to make 
such communications be the person’s sole or 

1 So in original. Probably should be “section,”. 

122a 

principal business or source of income). A person 
may be considered to be engaged in the business 
of making, by means of the World Wide Web, 
communications for commercial purposes that 
include material that is harmful to minors, only if 
the person knowingly causes the material that is 
harmful to minors to be posted on the World Wide 
Web or knowingly solicits such material to be 
posted on the World Wide Web. 

(3) Internet 

The term “Internet” means the combination of 
computer facilities and electromagnetic transmission 
media, and related equipment and software, comprising 
the interconnected world wide network of computer 
networks that employ the Transmission Control 
Protocol/Internet Protocol or any successor protocol to 
transmit information. 

(4) Internet access service 

The term “Internet access service” means a service 
that enables users to access content, information, 
electronic mail, or other services offered over the 
Internet, and may also include access to proprietary 
content, information, and other services as part of a 
package of services offered to consumers. Such term 
does not include telecommunications services. 

(5) Internet information location tool 

The term “Internet information location tool” means 
a service that refers or links users to an online location 
on the World Wide Web. Such term includes 

123a 

directories, indices, references, pointers, and hypertext 
links. 

(6) Material that is harmful to minors 

The term “material that is harmful to minors” means 
any communication, picture, image, graphic image file, 
article, recording, writing, or other matter of any kind 
that is obscene or that— 

(A) the average person, applying contemporary 
community standards, would find, taking the 
material as a whole and with respect to minors, is 
designed to appeal to, or is designed to pander to, 
the prurient interest; 

(B) depicts, describes, or represents, in a 
manner patently offensive with respect to minors, 
an actual or simulated sexual act or sexual contact, 
an actual or simulated normal or perverted sexual 
act, or a lewd exhibition of the genitals or post- 
pubescent female breast; and 

(C) taken as a whole, lacks serious literary, 
artistic, political, or scientific value for minors. 

(7) Minor 

The term “minor” means any person under 17 years 
of age. 

124a 

APPENDIX E 

UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

No. 99-1324 

AMERICAN CIVIL LIBERTIES UNION; 
ANDROGYNY BOOKS, INC. D/B/A A DIFFERENT 

LIGHT BOOKSTORES; 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; 
POWELL’S BOOKSTORE; RIOTGRRL; 
SALON INTERNET, INC.; WEST STOCK, INC.; 
PLANETOUT CORPORATION 

v. 

JANET RENO, IN HER OFFICIAL CAPACITY 
AS ATTORNEY GENERAL OF THE UNITED STATES, 
APPELLANT 

On Appeal From The United States District Court For 
The Eastern District Of Pennsylvania 

[Filed: Sept. 15, 2000] 

125a 

SUR PETITION FOR REHEARING 

BEFORE: BECKER, Chief Judge, SLOVITER, MANS- 
MANN, SCIRICA, NYGAARD, ALITO, ROTH, 
MCKEE, BARRY, AMBRO, FUENTES and 
GARTH*, Circuit Judges 

The Petition for rehearing filed the Appellant in the 
above-entitled matter, having been submitted to the 
judges who participated in the decision of this court and 
to all other available circuit judges in regular active 
service, and no judge who concurred in the decision 
having asked for rehearing, and a majority of the circuit 
judges in regular active service not having voted for 
rehearing by this court en banc, the Petition for 
Rehearing is hereby DENIED. 

Judge Alito would have granted rehearing en banc. 

IT IS SO ORDERED. 

By the Court, 

/s/ signature illegible 

United States Circuit Judge 

DATE: SEP 15 2000 

* Judge Garth’s vote is limited to panel rehearing only.