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 

REPLY BRIEF FOR THE PETITIONER 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: Page 

American Booksellers Ass’n v. Virginia, 882 F.2d 
125 (4th Cir. 1989), cert. denied, 494 U.S. 1056 
(1990) ........................................................................................ 8 

American Booksellers v. Webb, 919 F.2d 1493 
(11th Cir. 1990), cert. denied, 500 U.S. 942 (1991) ........... 

8 

Bose Corp. v. Consumers Union, 466 U.S. 485 
(1984) ........................................................................................ 4 

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 
(1985) ........................................................................................ 4 

Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), 
cert. denied, 520 U.S. 1117 (1997) ....................................... 

8 

Erznoznik v. City of Jacksonville, 422 U.S. 205 
(1975) ........................................................................................ 4 

FCC v. Pacifica Found., 438 U.S. 726 
(1978) ........................................................................................ 7 

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

6 

Hamling v. United States, 418 U.S. 87 (1974) .................. 
2 

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

Miller v. California, 413 U.S. 15 (1973) ............................ 
2, 4 

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

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

8 

Reno v. ACLU, 521 U.S. 844 (1997) ................................. 
4, 6, 7 

Sable Communications of Cal., Inc. v. FCC, 
492 U.S. 115 (1989) ................................................................ 
2, 3 

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 
(1997) ........................................................................................ 10 

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

2 

United States v. Playboy Entm’t Group, 

Inc., 529 U.S. 803 (2000) ...................................................... 

9 

Upper Midwest Booksellers Ass’n v. City of 

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

(I) 

II 

Constitution and statutes: 

Page 

U.S. Const. Amend. I ............................................................... 
2 

Statutes—Continued: 

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

Div. C, Tit. XIV, § 1403-1404, 112 Stat. 2681-736 
to 2681-739 (47 U.S.C. 230-231 (Supp. IV 1998)): 
47 U.S.C. 230(d) (Supp. IV 1998) .................................... 

9 
47 U.S.C. 231(a)(1) (Supp. IV 1998) ............................... 
6 

47 U.S.C. 231(e)(6) (Supp. IV 1998) ............................... 
4 

47 U.S.C. 231(e)(7) (Supp. IV 1998) ............................... 
6 

Miscellaneous: 

H.R. Rep. No. 775, 105th Cong., 2d Sess. (1998) ........... 3, 5, 6, 9 

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 

REPLY BRIEF FOR THE PETITIONER 

The court of appeals held, sua sponte, that the Child 
Online Protection Act’s (COPA) reliance on community 
standards “must lead inexorably to a holding of a likeli- 
hood of unconstitutionality of the entire COPA statute.” 
Pet. App. 21a. As we explain in our petition, that con- 
stitutional ruling not only renders the entire COPA 
statute unenforceable; it also threatens to cripple Con- 
gress’s ability to regulate material that is harmful to 
minors on the World Wide Web. The court’s holding 
also conflicts with decisions of this Court. Review by 
this Court is therefore clearly warranted. 

1. Respondents do not dispute that the court of 
appeals’ ruling renders the entire COPA statute un- 
enforceable. Nor do respondents argue that further 
proceedings in the district court are needed to render 
the court of appeals’ ruling ripe for review by this 

(1) 

2 

Court. Respondents nonetheless oppose certiorari, ar- 
guing that COPA violates the First Amendment. 

That argument provides no basis for failing to grant 
review in this case. When a court of appeals invalidates 
an Act of Congress and prevents any enforcement of 
that Act, review by this Court is warranted on that 
basis alone. 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”). 
This Court, and not a court of appeals, should finally re- 
solve the question whether an Act of Congress satisfies 
constitutional standards. This Court has repeatedly 
granted government petitions to review appellate court 
decisions that concern the constitutionality of an Act of 
Congress and that prevent its enforcement. The Court 
should grant review in this case for the same reason. 

2. Review is also warranted because the court of 
appeals’ community standards holding conflicts with 
this Court’s decisions. In Miller v. California, 413 U.S. 
15, 24, 30 (1973), the Court upheld the constitutionality 
of applying community standards to determine whether 
material appeals to the prurient interest and is patently 
offensive. In both Hamling v. United States, 418 U.S. 
87 (1974), and Sable Communications of California, 
Inc. v. FCC, 492 U.S. 115 (1989), the Court held that 
there is no constitutional barrier to requiring commer- 
cial entities whose commercial activities have effects in 
multiple geographic areas to bear the responsibility for 
complying with the standards in each geographic area. 
Under those cases, COPA’s incorporation of community 
standards does not violate the First Amendment. 
Respondents contend (Br. in Opp. 24-25) that Ham- 
ling and Sable apply only to situations in which com- 
mercial entities can distribute material to one geo- 
graphic area without simultaneously distributing it to 

3 

others. Those decisions, however, do not depend on 
that precondition. Under those decisions, it is both fair 
and reasonable to require commercial entities that take 
advantage of a nationwide market for their communi- 
cations to ensure that those communications are not 
harmful to children throughout the nation. If a com- 
mercial entity’s “audience is comprised of different 
communities with different local standards,” the com- 
mercial entity “ultimately bears the burden of comply- 
ing with the prohibition on [harmful-to-minor] mess- 
ages.” Sable, 492 U.S. at 126. 

Respondents assert (Br. in Opp. 22-23) that, because 
of the technological limitations of the World Wide Web, 
COPA impermissibly requires a commercial entity to 
comply with the standards of the most conservative 
community. Congress found, however, that, as applied 
to a national medium like the World Wide Web, the 
harmful to minors standard is “one that is reasonably 
constant among adults in America.” H.R. Rep. No. 775, 
105th Cong., 2d Sess. 28 (1998). Respondents cite no 
evidence that contradicts Congress’s finding. 

Respondents’ argument also fails to take into account 
features of COPA that reinforce a “reasonably con- 
stant” harmful-to-minors standard. COPA applies only 
to material that: 
(A) the average person, applying contemporary 
community standards, would find, taking the mate- 
rial as a whole and with respect to minors, is de- 
signed 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 

4 

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). 

Significantly, the “serious value” prong of the 
harmful-to-minors standard does not incorporate com- 
munity standards. It therefore readily “allows appellate 
courts to impose some limitations and regularity * * * 
by setting, as a matter of law, a national floor for so- 
cially redeeming value.” Reno v. ACLU, 521 U.S. 844, 
873 (1997). The “appeals to the prurient interest” and 
“patently offensive” prongs do incorporate community 
standards. See Miller, 413 U.S. at 24, 30. Even as to 
those prongs, however, there remain important sub- 
stantive limitations, enforceable by a reviewing court 
on independent review, on what falls within them. See 
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498- 
499 (1985) (holding that material appeals to the “pru- 
rient interest” when it appeals to a “shameful or morbid 
interest” in sex, not when it appeals to a “normal” 
interest in sex); Erznoznik v. City of Jacksonville, 422 
U.S. 205, 213 & n.10 (1975) (material that contains 
nudity may be found to be harmful to minors only if it 
is, “in some significant way, erotic”); cf. Jenkins v. 
Georgia, 418 U.S. 153, 159-161 (1974) (establishing sub- 
stantive limits on what may be deemed “patently 
offensive” with respect to adults and stating that “it 
would be a serious misreading of Miller to conclude 
that juries have unbridled discretion in determining 
what is ‘patently offensive’ ”); Bose Corp. v. Consumers 
Union, 466 U.S. 485, 506-507 (1984) (independent appel- 
late review applies to determinations concerning appeal 
to the prurient interest and patent offensiveness). As 

5 

the House Report explains, COPA applies only to mate- 
rial that is “clearly pornographic”; it does not apply to 
“entertainment, library, or news materials that merely 
contain nudity or sexual information.” H.R. Rep. No. 
775, supra, at 28. Respondents simply ignore the fea- 
tures of COPA that narrow its coverage and serve to 
promote a reasonably constant harmful-to-minors stan- 
dard. 

Thus, this Court’s decisions, Congress’s findings, 
and the structure of COPA uniformly lead to the con- 
clusion that the court of appeals erred in its community 
standards holding. That holding warrants this Court’s 
review. 

3. Respondents devote the bulk of their opposition 
(Br. in Opp. 9-19) to attacks on COPA that the court of 
appeals did not embrace. This Court may appropriately 
grant certiorari to decide the community standards 
question that the court of appeals did resolve and that 
we present in the certiorari petition, while leaving 
respondents’ additional arguments to be considered by 
the court of appeals in the first instance. In any event, 
those arguments do not demonstrate that COPA is 
unconstitutional, much less that this Court should not 
grant the petition for review in this case. 

a. Respondents first argue (Br. in Opp. 9-13) that 
there is no difference between COPA and the Com- 
munications Decency Act of 1996 invalidated in Reno v. 
ACLU. But as we explain in our petition (at 6-8, 17-18), 
COPA differs from the CDA in a number of important 
ways that support Congress’s judgment that COPA is 
the least restrictive way to further the government’s 
compelling interest in protecting children from the 
effects of harmful materials. 

First, the CDA applied not only to communications 
on the World Wide Web, but to all forms of com- 

6 

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 applied to any mate- 
rial that was “indecent” or “patently offensive,” without 
defining those terms, Reno v. ACLU, 521 U.S. at 871 & 

n.37, 873, 877, while COPA applies only to material that 
satisfies the specific three-prong standard discussed 
above. Third, the CDA defined a minor as any 
person under the age of 18. Reno v. ACLU, 521 U.S. at 
865-866. In contrast, COPA, like the state law upheld 
in Ginsberg v. New York, 390 U.S. 629 (1968), defines 
minor to mean “any person under 17 years of age.” 47 
U.S.C. 231(e)(7) (Supp. IV 1998). Fourth, the CDA ap- 
plied not only to commercial entities or transactions, 
but 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). 
Fifth, the CDA made it unlawful for parents to permit 
their children to use the family computer to view in- 
decent 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. 

Respondents argue (Br. in Opp. 12-13) that none 
of those differences has “constitutional significance.” 
That argument ignores this Court’s decision in Reno v. 
ACLU. In explaining why the CDA could not be 
justified under Ginsberg and failed strict scrutiny, the 

7 

Court discussed each of the factors noted above. 521 
U.S. at 865-866, 870-874, 877-879. Congress in turn took 
account of the Court’s decision in Reno v. ACLU by 
tailoring COPA in a manner that responds to those 
very concerns that the Court identified. There accord- 
ingly is no merit to respondents’ assertion (Br. in Opp. 
9-12) that Reno v. ACLU requires invalidation of 
COPA. 

The changes made by Congress, moreover, are ob- 
viously significant. Unlike some other means of com- 
munication on the Internet, it is both technologically 
and economically feasible to screen for age on the 
World Wide Web. Pet. App. 75a-77a. COPA’s three- 
prong harmful-to-minors standard tracks the standard 
upheld in Ginsberg; it does not suffer from the vague- 
ness of the CDA’s standard; and it vastly narrows the 
scope of coverage, eliminating coverage of such things 
as the seven “dirty words” monologue at issue in FCC 

v. Pacifica Foundation, 438 U.S. 726 (1978), discussions 
about safe sex practices, and library card catalogues. 
See Reno v. ACLU, 521 U.S. at 878. COPA’s reduction 
in the age limit to under 17 allows more mature minors 
to have access to the material at issue. Persons who 
post material “for commercial purposes” can reasonably 
be expected to bear the cost of compliance as a part of 
the cost of doing business. And eliminating the pro- 
hibition against parents permitting their children to 
view the material at issue avoids interference with the 
parent-child relationship. Respondents’ assertion (Br. 
in Opp. 12-13) that the changes have “no constitutional 
significance” is simply incorrect. 

b. Respondents also argue (Br. in Opp. 14-17) that 
COPA imposes an unacceptable burden on constitution- 
ally protected speech because adults will be deterred 
from seeking access to material that is placed behind 

8 

adult verification screens. The district court found, 
however, that adult verification services provide per- 
sonal identification numbers to adults for $16.95 per 
year and furnish Web site operators with the software 
necessary to screen for such numbers at no cost. Pet. 
App. 75a-77a. The district court also found that ap- 
proximately three million users possess a valid ID 
from one such service and that more than 46,000 sites 
use that service. Id. at 76a. While “some” adults 
may nonetheless be deterred from seeking access to 
material placed behind adult verification screens, id. 
at 81a, that is a small cost to pay for protecting children 
from the harmful effects of graphic pornographic 
images on the World Wide Web. 

Under respondents’ contrary view, state laws that 
require commercial vendors to place “harmful to mi- 
nors” material behind a “blinder rack,” in a “sealed 
wrapper,” or inside an “opaque cover,” and that require 
proof of adult status for purchase of such materials, 
would all be unconstitutional. All such laws deter 
“some” adults from purchasing the material. Despite 
that effect, the lower courts have regularly upheld 
those laws. See, e.g., Crawford v. Lungren, 96 F.3d 
380 (9th Cir. 1996), cert. denied, 520 U.S. 1117 (1997); 
American Booksellers 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 (8th Cir. 1985); M.S. News 
Co. v. Casado, 721 F.2d 1281 (10th Cir. 1983). There is 
no reason for a different outcome here. 

c. Finally, respondents contend (Br. in Opp. 17-19) 
that COPA is not narrowly tailored because the use of 
filtering software by parents is less restrictive and at 

9 

least as effective. COPA, however, compels Web pub- 
lishers to take steps to prevent minors from obtaining 
access to material that is harmful to them. Under re- 
spondents’ “alternative,” no entity is required to install 
filtering software. See Pet. App. 94a n.6; compare 
United States v. Playboy Entertainment Group, Inc., 
529 U.S. 803, 816 (2000). Blocking software also has 
several additional built-in limitations. As the district 
court found, it both blocks certain material that is not 
harmful to minors and fails to screen out certain 
material that is harmful to minors. Pet. App. 94a. It 
can be defeated by a computer-savvy minor. Id. at 82a. 
It can be expensive to purchase. H. R. Rep. No. 775, 
supra, at 19. And it must be updated periodically at an 
additional cost. Id. at 20. 

More fundamentally, the requirements of COPA and 
the use of blocking software by parents are not mutu- 
ally exclusive alternatives. Both can work together to 
prevent children from being exposed to harmful-to- 
minors material, and Congress envisioned that they 
would. 47 U.S.C. 230(d) (Supp. IV 1998) (requiring In- 
ternet service providers to notify customers of the 
availability of blocking software); H.R. Rep. No. 775, 
supra, at 19 (noting that blocking software may be 
effective for many parents). In those circumstances, 
any debate about which is more effective operating 
alone is beside the point. The relevant question is 
whether Congress’s entire scheme—which envisions 
COPA and blocking software operating together—is 
significantly more effective in preventing access to 
harmful-to-minors material than the use of blocking 
software alone. Since the two together are significantly 
more effective in protecting children from harmful 
material than blocking software alone, respondents’ 

10 

proposed alternative is not as effective as the scheme 
that Congress enacted.* 

* * * * * 

For the foregoing reasons and the reasons stated in 
the petition, the petition for a writ of certiorari should 
be granted. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

MAY 2001 

* Respondents assert (Br. in Opp. 19-20 n.3) that the govern- 
ment did not “challenge on appeal[] the district court’s factual 
finding that blocking software was more effective at achieving the 
government’s interest.” The district court, however, found only 
that blocking software “may be at least as successful as COPA 
would be in restricting minors’ access to harmful material,” Pet. 
App. 94a, not that it “was more effective.” Moreover, relying on 
the limitations on blocking software discussed above, the govern- 
ment argued on appeal that blocking software is not a less re- 
strictive and equally effective alternative. C.A. Br. 44-47. In any 
event, the relevant inquiry is not whether the district court’s 
determination on the issue of effectiveness is supported by the 
record, but whether “substantial evidence” supports Congress’s 
determination on that issue. Turner Broad. Sys., Inc. v. FCC, 520 
U.S. 180, 195-196 (1997).