No. 00-1293 

In the 
Supreme Court of the 

United States 

JOHN ASHCROFT, ATTORNEY GENERAL OF THE 
UNITED STATES, 

Petitioner, 

v. 

AMERICAN CIVIL LIBERTIES UNION, ET AL., 

Respondents. 

ON WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS FOR THE THIRD 
CIRCUIT 

BRIEF FOR THE RESPONDENTS 

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

UNION FOUNDATION 
125 Broad Street, 18th Floor 
New York, N.Y. 10004 

STEFAN PRESSER 
AMERICAN CIVIL LIBERTIES 

UNION OF PENNSYLVANIA 
125 South 9th Street, Suite 701 
Philadelphia, P.A. 19107 

DAVID L. SOBEL 
ELECTRONIC PRIVACY 
INFORMATION CENTER 
1718 Connecticut Ave. NW 
Washington, D.C. 20009 

LEE TIEN 
ELECTRONIC FRONTIER 
FOUNDATION 
454 Shotwell Street 
San Francisco, C.A. 94110 
Counsel for Respondents 

i 

QUESTION PRESENTED 

Whether the court of appeals correctly held that the 
criminal and civil provisions of a federal law, the Child 

Online Protection Act, 47 U.S.C. § 231, violate the First 
Amendment by suppressing a large amount of speech on 
the World Wide Web that adults are entitled to 

communicate and receive. 

ii 

PARTIES TO THE PROCEEDING 

The petitioner in this case is John Ashcroft, Attorney 
General of the United States. The respondents are American 

Civil Liberties Union; Androgyny Books, Inc. d/b/a A 
Different Light 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; OBGYN.net; 

Philadelphia Gay News; PlanetOut Corporation; Powell’s 
Bookstore; Riotgrrl; Salon Internet, Inc.; and West Stock, 
Inc., now known as ImageState North America, Inc. The 

plaintiff Internet Content Coalition is no longer in existence. 

iii 

CORPORATE DISCLOSURE STATEMENT 

In accordance with United States Supreme Court 
Rule 29.6, respondents refer to the Corporate Disclosure 

Statement in respondents’ Brief in Opposition to Certiorari, 
with the following amendments: 

1) Respondent Internet Content Coalition is no 
longer in existence. 

2) PlanetOut Corporation now has a parent 
corporation, PlanetOut Partners, Inc. JP Morgan Partners 
and affiliated entities of JP Morgan Partners together hold 

more than 10% of the shares issued and outstanding of 
PlanetOut Partners, Inc. AOL Time Warner Inc. does not 
hold more than 10% of the shares issued and outstanding of 

PlanetOut Corporation or PlanetOut Partners, Inc. 

iv 

TABLE OF CONTENTS 

Page 

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

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

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

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

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

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

A. Introductory Statement And Proceedings 

Below ......................................................................... 1 

B. The Reach Of COPA: Plaintiffs And Their 

Speech 2 

C. The Challenged Statute ............................................ 5 

D. COPA’s Impact On Protected Speech ..................... 6 

E. Additional Burdens Of Utilizing Credit 

Cards Or Adult Access Codes ................................. 9 

F. Alternatives To COPA ........................................... 11 

SUMMARY OF THE ARGUMENT........................................ 12 

ARGUMENT............................................................................ 15 

I. COPA IS CLEARLY OVERBROAD AND FAILS 
STRICT SCRUTINY........................................................ 15 

A. COPA Suppresses A Wide Range Of 

Speech Protected For Adults ................................ 15 

B. COPA’S Affirmative Defenses Do Not 

Save The Statute, Because They Would 
Prevent Or Deter Adult Web Users From 
Accessing Protected Speech................................... 21 

v 

C. COPA Is Not Narrowly Tailored To 

Advance The Government's Asserted 
Interest..................................................................... 30 

II. COPA UNCONSTITUTIONALLY 
IMPOSES THE MOST RESTRICTIVE 

COMMUNITY’S STANDARDS ON 
WEB SPEECH NATIONWIDE ..................................... 33 

A. The Court Of Appeal’s Reasoning Is 

Correct Under Miller And Its Progeny.................. 33 

B. The Facts Establish That COPA 

Unconstitutionally Imposes The Most 
Restrictive Community Standards On All 
Web Speech............................................................. 35 

C. The Government Presented No Evidence 

That Community Standards Are 
“Reasonably Constant” Across America, 

And Such An Interpretation Would Not 
Save The Statute...................................................... 40 

D. The Court of Appeals’ Reasoning Is Fully 

Consistent With Hamling and Sable ....................... 44 

CONCLUSION ........................................................................ 48 

vi 

TABLE OF AUTHORITIES 

Page(s) 

CASES 

A Book Named ‘John Cleland's Memoirs of a 

Woman of Pleasure’ v. Massachusetts, 

383 U.S. 413 (1966)....................................................... 35 

American Booksellers v. Webb, 

919 F.2d 1493 (11th Cir. 1990) ............................... 17, 46 

American Booksellers Association v. Rendell, 

481 A.2d 919 (Pa. 1984) ............................................... 46 

American Civil Liberties Union v. Johnson, 

194 F.3d 1149 (10th Cir. 1999) ............................... 39, 47 

American Civil Liberties Union v. Reno, 

929 F. Supp. 824 (E.D. Pa. 1996), 

aff'd, 521 U.S. 844 (1997) ...................................... passim 

American Civil Liberties Union v. Reno, 

31 F. Supp. 2d 473 (1999), 

aff'd, 217 F.3d 162 (3d Cir. 2000) ......................... passim 

American Library Association v. Pataki, 

969 F. Supp. 160 (S.D.N.Y. 1997) .............. 39, 45, 46, 47 

Bolger v. Youngs Drug Products Corp., 

463 U.S. 60 (1983)......................................................... 16 

vii 

Butler v. Michigan, 

352 U.S. 380 (1957)................................................. 16, 17 

Carey v. Population Services International, 

431 U.S. 678 (1977)....................................................... 17 

Carlin Communications, Inc. v. FCC, 

837 F.2d 546 (2d Cir. 1988) .......................................... 32 

Central Hudson Gas & Electric Corp. v. Public 

Service Commission, 

447 U.S. 557 (1980)....................................................... 30 

Cyberspace Communications, Inc. v. Engler, 

55 F. Supp. 2d 737 (E.D. Mich. 1999), 

aff'd, No. 99-2064, 2000 WL 1769592 (6th Cir. 

Nov. 15, 2000) ........................................................ 39, 47 

Davis-Kidd Booksellers, Inc. v. McWherter, 

866 S.W.2d 520 (Tenn. 1993) ....................................... 46 

Denver Area Educational Telecommunications 

Consortium, Inc. v. FCC, 

518 U.S. 727 (1996)................................................ passim 

Doran v. Salem Inn, Inc., 

422 U.S. 922 (1975)....................................................... 15 

Erznoznik v. City of Jacksonville, 

422 U.S. 205 (1975)................................................ 16, 29 

viii 

Fabulous Associates v. Pennsylvania Public 

Utility Commission, 

693 F. Supp. 332 (E.D. Pa. 1988), 

aff'd, 896 F.2d 780 (3d Cir. 1990) ................................. 14 

FCC v. Pacifica Foundation, 

438 U.S. 726 (1978)....................................................... 34 

Ginsberg v. New York, 

390 U.S. 629 (1968)................................................. 16, 36 

Hamling v. United States, 

418 U.S. 87 (1974).................................................. 44, 45 

Hatch v. Superior Court, 

94 Cal. Rptr. 2d 453 (Cal. App. 2000) ......................... 47 

Jacobellis v. Ohio, 

378 U.S. 184 (1964)....................................................... 35 

Landmark Communications, Inc. v. Virginia, 

435 U.S. 829 (1978)....................................................... 12 

Lorillard Tobacco Co. v. Reilly, 

121 S. Ct. 2404 (2001) ................................................... 17 

Miller v. California, 

413 U.S. 15 (1973).................................................. passim 

ix 

PSINet v. Chapman, 

108 F. Supp. 2d 611 (W.D. Va. 2000) .................... 39, 47 

People v. Barrows, 

677 N.Y.S.2d 672 (Sup. Ct. 

1998), rev'd in part on other 
grounds, 709 N.Y.S.2d 573 
(App. Div. 2000)........................................................... 47 

R.A.V. v. City of St. Paul, 

505 U.S. 377 (1992)....................................................... 15 

Roth v. United States, 

354 U.S. 476 (1957)....................................................... 34 

Sable Communications v. FCC, 

492 U.S. 115 (1989)................................12, 16, 17, 44, 45 

Shea v. Reno, 

930 F. Supp. 916 (S.D.N.Y. 1996), 

aff'd, 521 U.S. 1113 (1997) ............................................ 22 

Simon & Schuster, Inc. v. Members of the 

New York State Crime Victims 
Board, 502 U.S. 105 (1991)............................................ 29 

Southeastern Promotions, Ltd. v. Conrad, 

420 U.S. 546 (1975)....................................................... 45 

x 

State v. Stankus, 

No. 95-2159-CR, 1997 WL 58727 

(Wisc. App. Feb. 13, 1997)........................................... 42 

Thigpen v. Roberts, 

468 U.S. 27 (1984)......................................................... 15 

United States v. Playboy Entertainment Group, Inc., 

529 U.S. 803 (2000)................................................ passim 

Virginia v. American Booksellers Association, 

484 U.S. 383 (1988)................................................. 36, 46 

Virginia v. American Booksellers Association, 

372 S.E.2d 618 (Va. 1988)............................................. 46 

Walters v. National Association of Radiation Survivors, 

473 U.S. 305 (1985)....................................................... 15 

STATUTES 

Child Online Protection Act, 

47 U.S.C. §§ 230, 231 (1998).................................. passim 

Communications Decency Act of 1996, 

47 U.S.C. § 223 (1996) .............................................. 1, 12 

Ala. Code § 13A-12-200 
(WESTLAW 2001)........................................................ 42 

xi 

D.C. Code Ann. § 22-2201 

(WESTLAW 2000)........................................................ 42 

Idaho Code §§ 18-1514, 1515 

(WESTLAW 2000)........................................................ 42 

La. Rev. Stat. § 14:91.11 

(WESTLAW 2000)........................................................ 42 

N.Y. Penal Law § 235.21 

(McKinney 1999).......................................................... 42 

S.C. Code Ann. § 16-15-375, 

as amended (WESTLAW 2001) .................................. 43 

LEGISLATIVE MATERIAL 

H.R. Rep. No. 105-775 (1998)................................................... 40 

MISCELLANEOUS 

Alan Guttmacher Institute, Sex 

Education: Politicians, Parents, 
Teachers and Teens (2001), 

available at http://www.agi- 
usa.org/pubs/ 
journals/gr040109.html .............................................. 43 

xii 

American Library Association, The 100 

Most 

Frequently Challenged Books of 
1990-1991, available at 
http://www.ala.org/bbooks/ 

top100bannedbooks1999.html.................................... 44 

Centers for Disease Control, 

Surveillance for Characteristics of 
Health Education Among 

Secondary Schools - School 
Education Profile (1998) ................................................ 43 

Complaint for Declaratory Relief, 

Yahoo! Inc. v. La Ligue Contre Le 
Racisme Et L’Anti-Sémitisme 
(N.D. Cal. Dec. 21, 2000), 

available at 
http://www.cdt.org/speech/ 

international0011221yahoocom 
plaint.pdf ..................................................................... 36 

Gallup Poll, Feb. 22, 1999, available at 

LEXIS News Library, RPOLL 
File, Accession No. 0322042........................................ 43 

xiii 

Interim Court Order, La Ligue Contre 

Le Racisme Et L’Anti-Sémitisme 

v. Yahoo! Inc. (T.G.I. Paris Nov. 
20, 2000) available at 
http://www.istf.org/ 

archive/yahoo_france.html........................................ 37 

Shawn Foster and Hilary Groutage, 

Judge: It’s Legal to Ban 

School Clubs, But East High Gay 

Group Can Sue, Salt Lake 
Tribune, October 8, 1999, at A1 .............................. 43 

Yankelovich Partners Poll, Oct. 16, 

1998, 

available at LEXIS News 
Library, RPOLL File, 

Accession No. 0312302................................................43 

STATEMENT OF THE CASE 

A. Introductory Statement And Proceedings 

Below 

This case concerns the Child Online Protection Act 
(“COPA”), 47 U.S.C. § 231(1998), Congress’ second attempt 
to impose severe criminal and civil sanctions on the display 

of protected, non-obscene speech on the Internet. COPA 
targets speech on the World Wide Web (the “Web”) that is 
harmful to minors according to “contemporary community 

standards.” The first attempt to restrict protected speech on 
the Internet was declared unconstitutional by all nine 
justices of this Court in Reno v. ACLU, 521 U.S. 844 (1997) 
(“ACLU I”) (affirming preliminary injunction against the 
Communications Decency Act (the “CDA”) 47 U.S.C. §223 
(1996)). Recognizing that the Internet is a powerful “new 

marketplace of ideas” and “vast democratic for[um]” that is 
“dramatic[ally] expand[ing]” in the absence of government 
regulation, the Court imposed the highest level of 

constitutional scrutiny on content-based infringements of 
Internet speech. ACLU I, 521 U.S. at 870, 885. 

Plaintiffs filed this challenge to the constitutionality 
of COPA in 1998. Joint Appendix (“J.A.”) 103. Based on live 
testimony, sworn declarations, and numerous exhibits, the 

district court first granted a temporary restraining order 
against COPA on November 20, 1998, which was extended 
on consent. Pet. App. 42a-43a, 112a-114a. Plaintiffs then 

moved for a preliminary injunction. The district court heard 
five days of live testimony from 10 witnesses and admitted 
approximately 18 sworn declarations and over 400 exhibits. 

Id. 43a, 64a n.5. The parties also stipulated to twenty facts. 
Id. 55a-62a, ¶¶ 0-19. One of those stipulations agreed that 
“[o]nce a provider posts its content on the Internet and 

chooses to make it available to all, it generally cannot 

2 

prevent that content from entering any geographic 
community.” Id. 62a, ¶ 18. As documented below, much of 
the actual record directly contradicts the limited legislative 

findings relied on by Congress and petitioner. 

After hearing “extensive” evidence, id. 12a, the 
district court granted a preliminary injunction, finding that 
plaintiffs were likely to succeed on the merits of their claim 
that COPA violated the First Amendment. Id. 98a. The 
court found that the government had not met its burden of 
establishing that COPA was narrowly tailored. Id. 91a-95a. 
Because any attempt by Web speakers to verify the age of 

readers would prevent adults from access to constitutionally 
protected speech, the district court held that COPA failed 
strict scrutiny. Id. 93a. 

The court of appeals affirmed, finding an alternative 
basis for COPA’s unconstitutionality. Id. 39a. The court of 
appeals specifically upheld the district court’s findings of 
fact and noted that they were undisputed by the parties. Id. 
12a. Because Web speakers are unable to verify the 

geographic location of readers, the court of appeals held that 
COPA would subject all speech on the Web to the most 
restrictive community’s standards. Id. 21a-36a. In 
affirming, the court of appeals found that the government 
had presented “no evidence to suggest that adults everywhere 
in America would share the same standards for determining 

what is harmful to minors.” Id. 31a (first emphasis added). 

B. The Reach Of COPA: Plaintiffs And Their 

Speech 

Plaintiffs “are a diverse group of speakers” on the 
Web. Id. 63a, ¶ 24. They “post, read, and respond to 
content including, inter alia, resources on obstetrics, 
gynecology, and sexual health; visual art and poetry; 
resources designed for gays and lesbians; information about 

books and stock photograph images offered for sale; and 

3 

online magazines.” Id. 63a, ¶ 21. Though they provide 
virtually all of their online information for free, they all 
communicate with the objective of making a profit. Id. 63a, 
¶ 23, 68a-69a, ¶ 33. They sue on their own behalf and on 
behalf of their readers. 

Plaintiffs include Web sites maintained by 
individuals. For instance, Mitchell Tepper of the Sexual 
Health Network runs his Web site out of his home. Id. 65a, 
¶ 25. “The mission of his Web site is to provide easy access 
to information about sexuality geared toward individuals 
with disabilities.” Id. The site “is almost exclusively sexual 
in nature and … contains, for example, information on 
sexual surrogacy as a form of sexual therapy and advice on 
how a large man and a small woman should position 

themselves comfortably for intercourse.” Id. The Sexual 
Health Network also has an interactive component through 
which readers can post questions and receive answers on 

topics such as how disabled persons can experience sexual 
pleasure. Id. 

Plaintiffs also include large and highly popular Web 
sites. Salon Internet, Inc. ("Salon") is a leading general 
interest online magazine featuring articles on current events, 

the arts, politics, the media, and sexuality. J.A. 139-40 
(Talbot Testimony). Salon publishes a regular column 
entitled “Sexpert Opinion” by author and sex therapist Susie 

Bright, including sexually frank articles such as “Move over 
Ken, it’s ‘Bend Over Boyfriend,’” and “Beatings, eatings and 
other ass-candy.” See generally J.A. 617-33 (Salon PI Exhs.). 
Salon reports extensively on politics, including widely- 
noted coverage of the story involving President Clinton and 
Monica Lewinsky. J.A. 139 (Talbot Testimony). Salon also 

hosts a very popular set of discussion groups called “Table 
Talk,” to which approximately three thousand messages are 
posted each day, on topics such as “Can boys find the right 

spot?” J.A. 147-49 (Talbot Testimony); J.A. 638-41 (Salon PI 

4 

Exhs.). Salon archives its content, and its Web site contains 
tens of thousands of pages published over the last three 
years. J.A. 145 (Talbot Testimony). 

Plaintiff PlanetOut is a Web site that acts as an online 
community for gay, lesbian, bisexual and transgendered 

people. The site includes, among other things, a bulletin 
board and chat rooms where users can discuss lesbian 
sexuality and post personal ads, including descriptions of 

their sexual interests and physical characteristics, and where 
teenagers who live in remote locations can discuss their 
sexual orientation. Pet. App. ¶ 66a, ¶ 26; J.A. 652-53, 661-69 

(PlanetOut PI Exhs.). The site is a valuable resource for 
“closeted” people who do not voluntarily disclose their 
sexual orientation due to fear of the reaction of others. Pet. 

App. 66a, ¶ 26.1 

1 Other plaintiffs include Condomania, a leading online 
seller of condoms and distributor of safer-sex related materials; 
ArtNet, the leading online vendor of fine art on the Web; Free 
Speech Media, which promotes extensive independent audio 
and video content on the Web; OBGYN.net, a comprehensive 
international online resource on obstetrics and gynecology; 
Powell’s Bookstore, a large new and used bookstore with a 
Web site containing information on over one million books; 
Electronic Frontier Foundation; Electronic Privacy Information 
Center; RiotGrrl, a popular “Webzine” that advocates positive 
empowerment for women; WestStock, an online seller of stock 
photographic images; BlackStripe, a Web-based resource for 
gay and lesbian individuals of African descent; American 
Booksellers Foundation for Free Expression, an organization 
that includes bookstores on the Web; and Philadelphia Gay 
News, which operates a Web site. See ACLU v. Reno (“ACLU 
II”), Pet. App. 64a n.5; see generally J.A. 601-757, Supplemental 
Lodging (“S.L.”) 65-78 (Plaintiffs’ PI Exhibits); J.A. 106-159, 
325-79, S.L. 1-3 (Plaintiffs’ Testimony); S.L. 4-64 (Plaintiffs 
Decls. & Exhs.). One of the plaintiffs in the district court was 
the Internet Content Coalition, a non-profit professional 
association of well-known content providers including The 
New York Times, Reuter’s, CBS News Media, CNET, and 
MSNBC. The Internet Content Coalition no longer exists. 

5 

Plaintiffs all engage in some speech that is sexual in 
nature and constitutionally protected for adults. Pet. App. 
52a. The government has never asserted that any are 

“commercial pornographers.” Although the government 
argued below that none engaged in speech that was 
“harmful to minors,” Pet. App. 51a, the government now 

asserts that at least some are engaged in illegal speech. Brief 
for the Petitioners (“Gov. Br.”) at 37. Thus, the government 
now concedes that the law criminalizes speech by people 

other than “commercial pornographers.” 

C. The Challenged Statute 

COPA imposes severe criminal and civil penalties2 
on persons who: 

knowingly and with knowledge of the 
character of the material, in interstate or 
foreign commerce by means of the World 

Wide Web, make[] any communication for 
commercial purposes that is available to any 
minor and that includes any material that is 

harmful to minors . . . . 

47 U.S.C. § 231(a)(1)-(3). 

COPA defines “commercial purposes” as being 
“engaged in the business of making such communications.” 
47 U.S.C. § 231(e)(2)(A). COPA then defines “engaged in the 

business” as meaning: 

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 

2 Violation of COPA subjects speakers to up to six months 
imprisonment and/or $50,000 in fines, plus additional fines for 
each intentional violation. 47 U.S.C. § 231(a). 

6 

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). 

47 U.S.C. § 231(e)(2)(B). 

Section 231(c)(1) of COPA provides an affirmative 
defense to prosecution if 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.” 47 U.S.C. § 231(c)(1); see also 47 
U.S.C. § 231(b). 

D. COPA’s Impact On Protected Speech 

The district court found that Web speakers “cannot 

know who is accessing their sites, or from where, or how old 
the users are unless they take affirmative steps to gather 
information from the user and the user is willing to give 

truthful responses.” Pet. App. 89a. The government itself 
stipulated that it is not possible for any Web speaker to 
know the geographic location of any reader. Pet. App. 62a. 

Consistent with this stipulation, there was no testimony 
about any technologies that could verify the geographic 
location of readers. The government’s current assertion to 

the contrary is contradicted by its own stipulation and 
unsupported by the record. See Gov. Br. at 16, 29 n.3; see also 
Section II(B) infra . 

Apparently recognizing that Web speakers are 
unable to ascertain the age of their readers, COPA contains 

three affirmative defenses to Web speakers who provide 

7 

content deemed “harmful to minors”: (1) requiring the use 
of a credit card, debit account, adult access code, or adult 
personal identification number; (2) accepting a digital 

certificate that verifies age; or (3) any other reasonable 
measures feasible under available technology. See Pet. App. 
46a, 70a-71a, ¶ 37. The district court found, and the 

government does not dispute, that there is no “authority 
that will issue a digital certificate that verifies a user’s age.” 

Id. 70a-71a, ¶ 37. Further, there are “no other reasonable 
measures” available to restrict access to minors. Id. Thus, 
the only technologies currently available for compliance 
with COPA are credit cards and adult access codes. Either 

option would require users to register and provide a credit 
card or other proof of identity before gaining access to 
restricted content. Id. 

“Without these affirmative defenses, COPA on its 
face would prohibit speech which is protected as to adults.” 

Id. 105a. As the district court found and the court of appeals 
affirmed, given the nature of the Web, even with these 
defenses COPA would prevent or deter both adults and 

minors from accessing protected speech. Id. 89a-90a. 

Expert testimony established that approximately one 

third of the 3.5 million sites on the Web are commercial, i.e., 
they “intend to make a profit.” Id. 67a, ¶ 27. By far the most 
popular business model is the advertiser supported or 

sponsored model, “in which nothing is for sale, content is 
provided for free, and advertising on the sites is the source 
of all revenue.” Id. 68a, ¶¶ 30, 31; J.A. 207 (Hoffman 
Testimony). Fee-based models are the least popular. Id. 68a, 
¶ 31. Web businesses are valued according to “the number 
of customers they believe the Web site is able to attract and 

retain over time, or ‘traffic.’” Id. 69a, ¶ 34; see also J.A. 216-20 
(Hoffman Testimony). Traffic is “the most critical factor for 
determining success or potential for success on a Web site.” 

Pet. App. 69a, ¶ 34. “The best way to stimulate user traffic 

8 

on a Web site is to offer some content for free to users . . . . 

[V]irtually all Web sites offer at least some free content.” Id. 

Because the “vast majority of information . . . on the 
Web . . . is provided to users for free,” id. 63a, ¶ 23, the court 
found that COPA’s registration requirements would deter 

most Web readers. Id. 89a. The plaintiffs testified that, 
because of privacy concerns, users would simply forego 
accessing their material if forced to provide a credit card or 

adult access code. For example, although PlanetOut allows 
users to register voluntarily to receive free benefits, “less 
than 10% of the users to [the] site have registered.” Id. 66a, 
¶ 26; see also J.A. 133-35, 138, 156 (Laurila Testimony). One 
of PlanetOut’s competitors which required identification 
saw its membership stagnate at 10,000, compared to the 

350,000 PlanetOut members and two million PlanetOut 
readers. Pet. App. 66a-67a, ¶ 26; J.A. 355, 368-69 (Reilly 
Testimony). 

Many of the plaintiffs’ readers and other Web users 
are even more reluctant to identify themselves because the 

information they seek is intensely personal, sensitive, or 
controversial. Mr. Tepper of the Sexual Health Network, for 
example, testified that some of his readers would simply not 

go to his site if they had to identify themselves. Pet. App. 
65a, ¶ 25. 

His site aims to provide information about 

sexuality to disabled persons who will only seek it 

anonymously. Similarly, many gay or lesbian people who 
are “closeted” rely on a Web site such as PlanetOut “because 
it allows closeted people access to this information while 

preserving their anonymity.” Id. 66a-67a, ¶ 26. 

In addition, COPA burdens speech that is not even 

targeted by the statute. Web speakers often draw and retain 
readers to their sites by sponsoring chat rooms, bulletin 
boards, and other interactive features that use Web-based 

protocols. Id. 59a, 69a, ¶ 35. It is undisputed that in order to 

9 

comply with COPA, plaintiffs would have to place all 
interactive speech behind credit card or age verification 
screens even if the speech is not harmful to minors. Id. 79a, 
¶ 58, 90a. “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.” Id. 
79a, ¶ 58. The government’s implication that COPA does 
not apply to interactive speech, see Gov. Br. at 9-10, 25-26, is 
thus contradicted by the record. In addition, a single Web 

page may have some content prohibited under COPA and 
some that is not. “Text is more difficult to segregate than 
images,” and so COPA would also force Web speakers to 

block entire Web pages, even if much of the page’s text is 
not harmful to minors. Pet. App. 77a-78a, ¶ 55. 

E. Additional Burdens Of Utilizing Credit 

Cards Or Adult Access Codes 

In addition to the strong deterrent effect of COPA’s 

screening requirements, the district court identified several 
other burdens that COPA’s defenses would impose on Web 
speech. Not all Web sites even have the ability to set up 

credit cards or adult access services to screen readers. For 
example, the defenses are completely unavailable to any 
Web site hosted by America Online and similar Internet 

service providers that do not allow fill-in-the-blank screens. 

Id. 73a, ¶ 44; J.A. 392 (Farmer Testimony). These Web 
speakers would have no choice but to eliminate all 

“harmful” content on their sites or risk criminal prosecution. 

Even if Web sites could utilize credit card or adult 

access services as a surrogate for age, they would incur 
“substantial financial costs.” Pet. App. 37a. First, Web 
speakers would have to segregate content into that which is 

potentially “harmful to minors” and that which is not. Id. 

10 

77a-79a, ¶¶ 54-58. For speakers with large Web sites, faced 
with jail time for their mistakes, this process could be quite 
difficult. Id. 71a, ¶ 39, 78a, ¶ 56. 

Second, speakers would have to pay start-up costs 
ranging from “$300 . . . to thousands of dollars.” Id. 72a, ¶ 

42. The government was unable to prove that credit card 
verification services “will authorize or verify a credit card 
number in the absence of a . . . [financial] transaction.” Id. 
73a, ¶ 45. Without such a service, Web speakers would also 
have to pay per-transaction costs every time a user accessed 
restricted content. These fees would allow users hostile to 

certain content to drive up costs to the speaker by 
repeatedly accessing it. J.A. 133 (Laurila Testimony). 

Utilizing the adult access code defense would 
impose additional burdens. There are dozens of adult 
access code services, which cater to the commercial 

pornography industry, and each one of which requires users 
to pay a separate fee. J.A. 348 (Tepper Testimony), 402-03 
(Farmer Testimony). Users could thus be required to pay 

multiple fees in order to access all of the content they wish 
to see. In addition, adult access codes are issued only after a 
person submits a variety of authoritative identifying 

information and, usually, submits a credit card. Pet. App. 
76a, ¶ 51; J.A. 439 (Alsarraf Testimony). Plaintiffs testified, 
without contradiction, that their users would not want to be 

associated with the “adult” access code industry, and would 
instead forego accessing the plaintiffs’ content. J.A. 330-31, 
347-52, 367-68, 370 (Barr, Tepper, Reilly Testimony). For 

example, persons seeking access to the mainstream CNET 
news site, or a disabled person wanting accurate 
information about sexual functioning from the Sexual 

Health Network, would not want to provide personal 
information to verification services associated with the 
pornography industry. J.A. 330-31 (Barr Testimony); J.A. 

344, 349 (Tepper Testimony). 

11 

In summary, the record contradicts the government’s 
assertion, Gov. Br. at 9, that credit cards and adult access 
codes are technologically and economically feasible. The 

district court concluded that using a credit card or adult 
verification screen would “deter users from accessing such 
materials and … the loss of users of such material may affect 

the speakers’ economic ability to provide such 
communications.” Pet. App. 89a. Especially when faced 
with the risk of imprisonment, many speakers would self- 
censor rather than set up age verification systems that their 
readers would not use. Id. 90a. 

F. Alternatives To COPA 

COPA does not restrict the wide range of harmful- 
to- minors materials provided non-commercially on the 

Web, and through non-Web protocols on the Internet such 
as newsgroups and non-Web chat rooms. Id. 93a. The law 
would also fail to protect minors from the forty percent of 

Web content that originates abroad. Id. 62a, ¶ 20, 93a. 
Conversely, as the government’s expert conceded, user- 
based blocking software can effectively block these 

materials, in addition to blocking Web-based commercial 
materials. Id. 81a-82a, ¶ 65. User-based blocking software 
can also block other content that parents may deem 

inappropriate, such as violence or hate speech. J.A. 314 
(Magid Testimony). To establish these controls, parents 
may either purchase software for their home computers or 

choose an Internet service provider or online service such as 
America Online that offers parental software controls. Pet. 
App. 81a-82a, ¶ 65; J.A. 309 (Magid Testimony). Available 

tracking and monitoring software can also determine which 
resources a child has accessed, and offer access to children- 

12 

only discussion groups that are closely monitored by adults. 
J.A. 317-18 (Magid Testimony).3 

SUMMARY OF THE ARGUMENT 

Because the extensive trial record in this case 

overwhelmingly supports the preliminary injunction against 
COPA, the government ignores it. Remarkably, the 
government brief cites almost exclusively to legislative 

findings, many of which are directly contradicted by the 
record. See Stmt. of the Case, supra at 7, 10-12. The 
Constitution, of course, requires the government to prove 

that COPA survives strict scrutiny by convincing a court 
with “actual facts” legitimized by the safeguards of the 
judicial process. Landmark Communications, Inc. v. Virginia, 
435 U.S. 829, 843 (1978). In particular, “[d]eference to a 
legislative finding cannot limit judicial inquiry when First 
Amendment rights are at stake.” Id. “Were it otherwise, the 
scope of freedom of speech . . . would be subject to 
legislative definition and the function of the First 
Amendment as a check on legislative power would be 

nullified.” Id. at 844; see also Sable Communications, Inc. v. 
FCC, 492 U.S. 115, 129 (1989); United States v. Playboy Entm’t 
Group, Inc., 529 U.S. 803, 822 (2000). 

The record establishes that COPA violates the central 
principal of ACLU I, in which this Court struck down the 
CDA. Both statutes, in their attempt to deny minors access 
to certain speech, “effectively suppress[] a large amount of 
speech that adults have a constitutional right to receive and 

to address to one another.” ACLU I, 521 U.S. at 874; see also 
Pet. App. 29a, 90a. The CDA made it a crime to 
communicate material that was “indecent” or “patently 

offensive” on the Internet. 47 U.S.C. § 223(a), (d)(1). COPA 
makes it a crime to communicate material on the Web for 

3 See also Amicus Curiae Brief on Behalf of the Computer & 

Communications Industry Association, et al. 

13 

commercial purposes that includes any material that is 
“harmful to minors.” 47 U.S.C. § 231(a)(1). 

Both the CDA and COPA are criminal statutes, 
which pose a very strong risk that they “may well cause 
speakers to remain silent rather than communicate even 

arguably unlawful words, ideas, and images.” ACLU I, 521 
U.S. at 872; Pet. App. 95a. Both apply to speech that is 
constitutionally protected for adults. Both effectively 

prevent adults from receiving speech because there is no 
way to prevent minors from obtaining communications on 
the Web without also deterring and burdening access by 

adults. See ACLU I, 521 U.S. at 876-77; Pet. App. 89a-90a, 
95a. Both statutes contain nearly identical affirmative 
defenses that protect only speakers that can prove they 

restrict prohibited content by requiring a credit card or adult 
access code; trial courts in both cases found that these 
defenses do not cure the statutes’ censorship of protected 

speech. See ACLU I, 521 U.S. at 881-82; see also Pet. App. 90a. 

In addition, as the court of appeals correctly held, 

COPA—like the CDA—imposes “community standards” on 
a medium that knows no geographical boundaries, and thus 
allows “any communication available to a nationwide 

audience [to] be judged by the standards of the community 
most likely to be offended by the message.” ACLU I, 521 
U.S. at 877-78; Pet. App. 27a, 29a. 

Contrary to the government’s argument, none of the 
differences between the two statutes are constitutionally 

significant. For example, the government stresses that 
COPA applies only to material communicated through the 
Web whereas the CDA applied to all forms of 

communication on the Internet. See Gov. Br. at 8-9. Yet the 
record shows that the volume and breadth of protected 
speech targeted by COPA—like the CDA—is staggering. 

See Stmt. of the Case, supra at 2-5, 8; Section I(A), infra. 

14 

Furthermore, the district court specifically found that COPA 
applies to millions of Web-based interactive messages. 
Because there is no way to screen individual messages in 

these fora, COPA would require age-screening for all of 
their millions of communications regardless of whether they 
contain material prohibited by the statute. See Pet. App. 79a, 
¶58. 

Likewise, although COPA purportedly restricts only 

speech provided “for commercial purposes,” see Gov. Br. at 
10, it applies to all speech provided for free on the Web by a 
commercial entity, not merely speech that proposes a 

commercial transaction. COPA sweeps in any individual or 
organization communicating with the objective of making a 
profit, whether by promoting and selling products over the 

Web or by selling space to advertisers or members. See Pet. 
App. 52a-53a, 63a-67a, ¶¶ 21-26. The government also 
makes much of the fact that COPA, unlike the CDA, tracks 

the “harmful to minors” standard this Court approved in 

Miller v. California, 413 U.S. 15 (1973), and Ginsberg v. New 
York, 390 U.S. 629 (1968). By definition, though, that 
standard is unconstitutional if applied to censor adult 
communications. See, e.g., Fabulous Assocs. v. Pennsylvania 
Pub. Util. Comm’n, 693 F. Supp. 332, 335 (E.D. Pa. 1988) (“[I]t 
is not enough that the variable standard may be 
constitutional as applied to minors, since it is being applied 
as a restriction on adults’ access to protected speech.”), aff’d, 
896 F.2d 780 (3d Cir. 1990). 

Given the close parallels between the CDA and 

COPA as established by the record, the government itself 
concedes that COPA would prevent adults from receiving 
protected speech. See Gov. Br. at 39-42. Ultimately, its only 
argument is that because COPA is not quite as censorious as 
the CDA, it should be upheld. A law banning books does 
not become constitutional because it is re-written to remove 

only every other book on the shelves. Content-based bans 

15 

are “presumptively invalid,” R.A.V. v. City of St. Paul, 505 
U.S. 377, 382 (1992), and the government has the burden to 
prove that such laws are narrowly tailored to serve a 

compelling interest. ACLU I, 521 U.S. at 870, 874. As the 
record establishes, the government did not meet that burden 
in this case. Thus, the holdings of both the district court and 

the court of appeals are correct under ACLU I, and this 
Court should likewise affirm the preliminary injunction 
against COPA’s criminal and civil penalties on protected 

speech.4 

ARGUMENT 

I. COPA IS CLEARLY OVERBROAD AND FAILS 

STRICT SCRUTINY 

A. COPA Suppresses A Wide Range Of 

Speech Protected For Adults 

Once a speaker posts content on the Web, it is 
available to all other Web users worldwide. J.A. 114, 145, 

148; see also ACLU I, 521 U.S. at 853. It is not technologically 
possible for a speaker to know the age of a user who is 
accessing her communications on the Web. See Pet. App. 
89a; see also ACLU I, 521 U.S. at 855, 876. 

In order to avoid the risk of criminal prosecution and 

civil penalties, on its face COPA requires Web speakers to 
deny both minors and adults access to any speech that may 
be considered “harmful to minors.” In striking down the 

CDA’s prohibitions on transmitting indecency to minors by 

4 The district court’s issuance of a preliminary injunction 
against COPA should stand unless respondents can prove an 
“abuse of discretion.” Walters v. National Ass’n of Radiation 
Survivors, 473 U.S. 305, 336 (1985) (O’Connor, J., concurring). 
Legal conclusions are reviewed de novo, and findings of fact are 
reviewed for clear error. Doran v. Salem Inn, Inc., 422 U.S. 922, 
931-32 (1975). Of course, the Court can affirm on any ground 
supported by the law and record. Thigpen v. Roberts, 468 U.S. 
27, 30 (1984). 

16 

means of the Internet, this Court held that while “we have 
repeatedly recognized the governmental interest in 
protecting children from harmful materials . . . that interest 

does not justify an unnecessarily broad suppression of 
speech addressed to adults.” Id. at 875. COPA is similarly 
invalid because it “effectively suppresses a large amount of 

speech that adults have a constitutional right to receive and 
to address to one another.” Id. at 874. 

Even if this Court had not already decided the 
constitutionality of a substantially identical statute, COPA’s 
civil and criminal penalties would be clearly 

unconstitutional under this Court’s well-established 
precedents. In its attempt to deny minors access to certain 
speech, COPA criminalizes the communication of 

expression that is clearly protected by the Constitution for 
adults. The government may not justify the suppression of 
constitutionally-protected speech under the guise of 

protecting children. Indeed, because “[t]he level of 
discourse reaching a mailbox simply cannot be limited to 
that which would be suitable for a sandbox,” the Court has 

never upheld a criminal prohibition on non-obscene 
communications between adults. Id. at 875 (quoting Bolger 

v. Youngs Drug Prods. Corp., 463 U.S. 60, 74-75 (1983) 
(internal quotation marks omitted)); see also Sable, 492 U.S. at 
131 (invalidating a conviction for distribution of indecent 
publications); Bolger, 463 U.S. at 74 (striking down a ban on 
mail advertisements for contraceptives); Erznoznik v. City of 
Jacksonville, 422 U.S. 205, 217-18 (1975) (striking down a 
statute that criminalized showing of certain movie content 

at drive-in theaters); Butler v. Michigan, 352 U.S. 380, 383 
(1957) (invalidating a conviction for distribution of indecent 
publications).5 The Court has uniformly rejected such 

5 Cf. Ginsberg v. New York, 390 U.S. 629 (1968) (upholding 
restriction on the direct commercial sale to minors of material 

17 

attempts to “burn the house to roast the pig.” Butler, 352 
U.S. at 383. 

This Court has also recently rejected even non- 
criminal speech regulations that attempt to “‘reduc[e] the 
adult population . . . to . . . only what is fit for children.’” 

Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 
U.S. 727, 759 (1996) (invalidating law requiring cable 
television operators to segregate and block “patently 

offensive” content on certain channels); see also Playboy, 529 
U.S. at 813 (invalidating law requiring cable television 
operators to scramble channels); Lorillard Tobacco Co. v. 

Reilly, 121 S. Ct. 2404, 2426 (2001) (invalidating tobacco 
advertising restrictions aimed at preventing children from 
viewing such advertising). 

Just as in prior cases, the category of speech that 
COPA prohibits includes a wide range of speech that is 

unquestionably constitutionally protected for adults. See 
ACLU I, 521 U.S. at 874 (“‘[s]exual expression which is . . . 
not obscene is protected by the First Amendment’”) 

(quoting Sable, 492 U.S. at 126); Carey v. Population Servs. 
Int’l, 431 U.S. 678, 701 (1977) (“[W]here obscenity is not 
involved, we have consistently held that the fact that 

protected speech may be offensive to some does not justify 
its suppression.”). 

The record is full of examples that illustrate the 
breadth of the protected speech that COPA targets: 

deemed “harmful to minors” because it “does not bar the 
appellant from stocking the magazines and selling them” to 
adults); American Booksellers v. Webb, 919 F.2d 1493, 1501 (11th 
Cir. 1990) (noting that “Ginsberg did not address the difficulties 
which arise when the government’s protection of minors 
burdens (even indirectly) adults’ access to material protected 
as to them”). 

18 

• ArtNet’s Web site displays photographs from 

Andres Serrano’s series “A History of Sex.” J.A. 
710-13 (ArtNet PI Exhs.). 

• OBGYN.net discusses issues such as birth 
control, sexual satisfaction, and sexually 
transmitted diseases. J.A. 716-27 (OBGYN.net PI 

Exhs.). 

• The Sexual Health Network covers topics from 
the use of sex toys to sexual surrogacy. J.A. 340, 

673, 681-85 (Tepper Testimony and PI Exhs.). 

• ACLU member Patricia Nell Warren’s Web site 
includes a graphic account of a fifteen-year-old 

who was date-raped when she was thirteen. J.A. 
732-36 (Warren PI Exhs.). 

• A Different Light’s site contains an article 
describing a gay author’s first experience of 

masturbation. J.A. 609-12 (Laurila PI Exhs.). 

• Salon publishes Susie Bright’s columns 
describing her sexual experiences including 

anally penetrating her boyfriend and having sex 
outdoors. J.A. 617-26 (Talbot PI Exhs.). 

• PlanetOut offers archives of an Internet radio 

show called “Dr. Ruthless” that discusses topics 
such as anal sex and masturbation. J.A. 658-60 
(Reilly PI Exhs.). 

• RiotGrrl’s articles include explicit descriptions of 
an author’s first experience with oral sex. J.A. 
745-48 (Douglas PI Exhs.). 

• BlackStripe’s Web site contains James Earl 

Hardy’s article Black-on-Black Love: It Ain’t A 
‘Revolutionary Act,’ which opens by asking “How 

19 

do you challenge the white cock you’re 
sucking?” J.A. 753-57 (Tarver PI Exhs.). 

Popular chat rooms and discussion boards involving 

sexual topics are also covered. COPA would criminalize 
PlanetOut’s forty chat rooms about gay sexuality and 
OBGYN.net’s numerous daily postings about pregnancy 

and sexually transmitted diseases. See J.A. 359 (Reilly 
Testimony), 716 (OBGYN.net PI Exhs.). Given the 
popularity of interactive messages and the more than one 

million commercial Web sites, the examples above are far 
from isolated. Pet. App. 67a, ¶ 27. See also Amicus Curiae 
Brief on Behalf of American Society of Journalists & 

Authors, et al. While such content is appropriate for adults, 
there is no doubt that some communities would find it 
“harmful to minors.” 

The government contends that COPA is “directed 
primarily to commercial pornographers” and that its 

“principal effect . . . is to require those commercial 
pornographers to put their teasers behind age verification 
screens.” Gov. Br. at 18. But the government itself argues 

that some of the plaintiffs’ exhibits are illegal under COPA, 

see Gov. Br. at 37, even though none of the plaintiffs in this 
case are commercial pornographers or have “teasers.” In 

fact, as the district court held, “[t]here is nothing in the text 
of COPA ... that limits its applicability to so-called 
commercial pornographers only.” Pet. App. 52a. COPA 

also expressly covers “writing[s],” “recording[s],” and 
“article[s],” not just commercial pornographic images. 47 
U.S.C. § 231(e)(6). 

Although COPA is limited to communications made 
“for commercial purposes,” on its face COPA applies to any 
Web site that, in the regular course of business, 
communicates any speech that includes any material that is 
harmful to minors. 47 U.S.C. § 231(a)(1); 47 U.S.C. 

20 

§ 231(e)(2)(B). The speaker is “engaged in the business” of 
making prohibited communications if she “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.” 47 U.S.C. § 231(e)(2)(A)-(B). The statute 
specifically notes that speakers are subject to prosecution 

even if providing “harmful” materials is not their “sole or 
principal business or source of income.” 47 U.S.C. 
§ 231(e)(2)(B). 

Instead of limiting its reach to commercial 
pornographers, COPA broadly applies to all speech on the 

Web—even speech provided for free—if the speaker is 
engaging in some business through which she merely hopes 
to make a profit through advertising or other means. 

Plaintiff BlackStripe, for example, provides Web users with 
a free Web-based forum to obtain and discuss information 
pertaining to same-gender-loving individuals of African 

descent, and is funded, in part, by selling space on the Web 
site to advertisers. See J.A. 75-76; see also J.A. 753-57 
(BlackStripe PI Exhs.). Similarly, plaintiff OBGYN.net 

provides its medical-related content free to Web users and is 
funded through advertising and sponsorship. See J.A. 88, 
716-27 (OBGYN.net PI Exhs.). 

As the district court noted and the Third Circuit 
affirmed, “the text of COPA imposes liability on a speaker 

who knowingly makes any communication for commercial 
purposes ‘that includes any material that is harmful to 
minors.’” Pet. App. 52a (emphasis added). In fact, Congress 

specified three times that communications covered by COPA 
“include[] any material” that may be deemed harmful to 
minors. See 47 U.S.C. § 231(a)(1); § 231(e)(2)(B) (twice). 
Based on COPA’s own definitions, the district court 
correctly held that “[b]ecause COPA applies to 
communications which include, but are not necessarily 
wholly comprised of material that is harmful to minors, it 

21 

logically follows that it would apply to any Web site that 
contains only some harmful to minors material.” Pet. App. 
52a (emphasis added). Thus, any harmful-to-minors 

material posted on a Web site—even a single book review of 
“The Topping Book, or, Getting Good at Being Bad” on the 
Web site of plaintiff A Different Light Bookstore, J.A. 603 

(Laurila PI Exhs.), or one Serrano photograph on the Web 
site of plaintiff ArtNet, J.A. 713 (ArtNet PI Exhs.)—would 
subject the speaker to COPA’s civil and criminal penalties. 

COPA effectively criminalizes all Web sites that contain 
even a single example of content that may be harmful to 
minors, and the government’s interpretation of the statute 

as applying only to commercial pornographers would deny 
any meaning to the statute’s explicit wording.6 

B. COPA’s Affirmative Defenses Do Not Save 

The Statute, Because They Would Prevent 

Or Deter Adult Web Users From Accessing 

Protected Speech 

Essentially conceding that COPA would be clearly 

unconstitutional without its affirmative defenses, the 
government argues that those defenses save the statute. The 
government ignores both the clear findings of the district 

court and this Court’s holding in ACLU I that identical 
affirmative defenses were not sufficient to save an otherwise 
unconstitutional act. See ACLU I, 521 U.S. at 881-82; Pet. 
App. 89a-90a. 

6 COPA’s definition of “harmful to minors” also requires 
material to be judged “as a whole.” 47 U.S.C. § 231(e)(6)(C). It 
is unclear how to apply this standard to the Web, where speech 
by different content providers and on different computers 
around the world is seamlessly linked together. The 
government apparently concluded that some plaintiffs are 
liable based on single pages viewed in isolation from the Web 
sites as a whole. See Gov. Br. at 17. 

22 

The only way for a speaker who displays “harmful 
to minors” materials to avoid conviction under COPA is to 
invoke one of the Act’s “affirmative defenses.”7 See 47 
U.S.C. § 231(c)(1)(A). COPA provides three affirmative 
defenses to Web speakers who provide content deemed 
“harmful to minors”: (1) requiring the use of a credit card, 

debit account, adult access code, or adult personal 
identification number; (2) accepting a digital certificate that 
verifies age; or (3) any other reasonable measures feasible 

under available technology. See Pet. App. 70a-71a, ¶ 37. 

The district court found, and the government does 

not dispute, that there is no “authority that will issue a 
digital certificate that verifies a user’s age.” Id. Further, 
there are “no other reasonable measures” available to 

restrict access to minors. Id. Thus, the uncontested evidence 
shows that the only technologies currently available for 
compliance with COPA are credit cards and adult access 

codes•••••••••• the same technologies considered by this 
Court in ACLU I and rejected as insufficient to save the 
statute.8 Recognizing the weakness of the credit card 

7 COPA’s criminal penalties would have a strong chilling 
effect even on those speakers who may have the ability to 
implement a defense. The defenses are affirmative defenses 
only, and “in no way shield[] a content provider from 
prosecution.” Shea v. Reno, 930 F. Supp. 916, 944 (S.D.N.Y. 
1996), aff’d, 521 U.S. 1113 (1997). 

8 Compare 47 U.S.C. ¶ 231(c) (“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;”) 
with ACLU I, 521 U.S. at 861 (quoting CDA) (“It is a defense to 
prosecution under . . . this section that a person -- . . . (B) has 
restricted access to such communication by requiring use of a 
verified credit card, debit account, adult access code, or adult 
personal identification number.”). The only other affirmative 

23 

defense, the government has now essentially abandoned its 
prior reliance on it. In its brief to this Court, it relies almost 
entirely on the adult access code defense. That defense, 

however, suffers from the same defects as the credit card 
defense. 

The evidence clearly establishes that either defense 
would require users to register and provide a credit card or 
other proof of identity before gaining access to restricted 

content. These defenses burden free speech, for at least five 
reasons discussed below: 

• they deny access to all adults without credit 
cards; 

• they require all interactive speech on the Web to 
be placed behind verification screens, even 
speech that is not “harmful to minors”; 

• they deter adults from accessing protected 
speech because they impose costs on content that 

would be free, eliminate privacy, and stigmatize 
content; 

• they allow hostile users to drive up costs to 
speakers; and 

• they impose financial burdens on speakers that 
will cause them to self-censor rather than incur 
those burdens. 

First, credit card verification would categorically 
prevent all adults without credit cards from accessing 

protected speech. 47 U.S.C. ¶ 231(c)(1)(A); see also ACLU I, 
521 U.S. at 856 (citing district court’s finding that a credit 
card requirement “‘would completely bar adults who do not 

have a credit card and lack the resources to obtain one from 
accessing any blocked material’”). Adult access services 

defense in the CDA was a good faith, reasonable action defense 
similar to the third defense in COPA. 

24 

generally require payment by credit card as well. See Pet. 
App. 76a, ¶ 51; J.A. 401 (Farmer Testimony). 

Second, the mandatory use of credit cards or adult 
access codes would burden interactive speech on the Web 
that is not even targeted by the statute. The government’s 

own expert testified 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.” Pet. 
App. 79a, ¶ 58. Web-based interactive fora are inherently 

dynamic; for instance, PlanetOut’s gay and lesbian users 
post messages that often include sexual content, and talk on 
Salon’s discussion boards ranges daily from the racy to the 

mundane. Pet. App. 66a, ¶ 26; J.A. 361 (Talbot Testimony); 

see also Stmt. of the Case supra at 3-4. Yet COPA would 
impose screening requirements on all content in these 
interactive fora. As the district court found: 

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 content, even that which is not 
harmful to minors, or editing all content before it 
is posted to exclude material that is harmful to 
minors. This has the effect of burdening speech 
in these fora that is not covered by the statute. 

Pet. App. 90a (citation omitted and emphasis added). 
Plaintiffs' expert testified that these interactive fora are vital 
in attracting users to their Web sites. See J.A. 221 (Hoffman 
Testimony). 

Third, as the district court found, “the 

implementation of credit card or adult verification screens 

25 

in front of material that is harmful to minors may deter 
[adult] users from accessing such materials.” Pet. App. 89a. 

See also Pet. App. 65a-67a, ¶¶ 25-26, 89a; ACLU I, 521 U.S. at 
857 n.23. Web users are reluctant to register and provide 
personal information. See Pet. App. 70a, ¶ 36. Because most 
content can be accessed anonymously for free, users “will 

only reveal credit card information at the time they want to 
purchase a product or service.” Pet. App. 63a, ¶ 23, 70a, ¶ 
36; see also Stmt. of the Case, supra at 8. Web sites that have 
required registration or payment before granting access 
“have not been successful.” Pet. App. 70a, ¶ 36. Plaintiffs 
testified that any mandatory registration would drive away 

their users. See J.A. 330-31 (Barr Testimony), 344 (Tepper 
Testimony), 367-68, 370 (Reilly Testimony). In ACLU I this 
Court relied on similar findings that credit card and adult 

access code requirements would unconstitutionally inhibit 
adult Web users. See ACLU I, 521 U.S. at 857 n.23 (“‘There is 
evidence suggesting that adult users, particularly casual 

Web browsers, would be discouraged from retrieving 
information that required use of a credit card or password.’” 
(quoting district court)). 

Mandatory use of credit cards or adult access codes 
would also deter users who want to preserve the privacy 

and anonymity inherent on the Web. If Web speakers 
utilize either COPA’s adult access code or credit card 
defenses, Web readers would be required to provide 

sensitive identifying information, perhaps to an untrusted 
third-party Web site, before accessing protected speech. See 
J.A. 379 (Farmer Testimony). COPA would deter adults 

from accessing restricted content because Web users are 
simply unwilling to provide identifying information in 
order to gain access to content. See Pet. App. 89a-90a; J.A. 
330-31 (Barr Testimony), 344 (Tepper Testimony), 367-68, 
370 (Reilly Testimony) (customers would simply forego 
accessing plaintiffs’ material entirely if forced to apply for 

26 

an adult access code, provide a credit card number, or pay 
for content). For example, Dr. Tepper testified that persons 
who access the Sexual Health Network “have already been 

too embarrassed or ashamed to ask even their doctor. I 
think if they come across this barrier to access, that they are 
just not going to take the next step and put their name and 

credit card information in.” J.A. 344 (Tepper Testimony). In 

Denver Area, this Court struck down a similar identification 
requirement because it would “further restrict viewing by 

subscribers who fear for their reputations should the 
operator, advertently or inadvertently, disclose the list of 
those who wish to watch the ‘patently offensive’ channel.” 

518 U.S. at 754. 

The mandatory use of credit cards or adult access 

codes may also impose inhibiting financial costs on users. 
Contrary to its assertion, the government did not prove that 
credit card verification was feasible. Indeed, the district 

court found that “it was not clear from the conflicting 
testimony” whether credit card verification services will 
authorize or verify a credit card number in the absence of a 

financial transaction. Pet. App. 73a, ¶ 45. Without such a 
service, a Web speaker would have to charge the user’s 
credit card for accessing the content. See J.A. 126, 129 
(Laurila Testimony). In the context of the Web where the 
vast majority of speech is provided for free, ACLU I, 521 U.S. 
at 852; see also J.A. 220, any financial burden on users would 
further deter them from accessing protected speech. Pet. 
App. 66a, ¶ 26. See also Stmt. of the Case, supra at 8; J.A. 133- 
135, 138 (Laurila Testimony), 156 (Talbot Testimony). 

Fourth, the use of a credit card may also require the 
Web speaker to pay a per-user fee. Thus, even if credit card 

companies agree to verify credit cards without charging the 
user a fee, the credit card company would charge the Web 
speaker $0.15 to $0.25 per authorization. See Pet. App. 73a, 
¶ 45. Such per-authorization fees would allow users 

27 

offended by certain content to drive up costs to the Web 
speaker by repeatedly accessing restricted content. See J.A. 
133 (Laurila Testimony). 

Fifth, although the district court correctly held that 
the “relevant inquiry is determining the burden imposed on 

the protected speech regulated by COPA, not the pressure 
placed on the pocketbooks or bottom lines of the plaintiffs,” Pet. 
App. 88a, the court found that COPA’s economic pressures 

would burden speech. COPA’s credit card and adult access 
defenses would require speakers to redesign their Web sites 
in order to restrict only “harmful to minors” content. The 

district court found that this could be prohibitively 
expensive, and, in some cases, would require plaintiffs to 
shield even some materials not “harmful to minors” behind 

age verification screens. As the district court recognized, the 
technological requirements for implementing either defense 
could be substantial—depending on the amount of content 

on a Web site, the amount of content that may be “harmful 
to minors,” the degree to which a Web site is organized into 
files and directories, the degree to which “harmful to 

minors” material is currently segregated into a particular 
file or directory and the level of expertise of the Web site 
operator. See Pet. App. 71a, ¶ 39, 78a, ¶ 56. COPA would 
require some Web sites to reorganize and redesign literally 
thousands of files. See J.A. 158-59 (Talbot Testimony). A 
content provider also would have to reorganize individual 

files and pages in order to restrict only content that could be 
“harmful to minors.” See Pet. App. 77a, ¶ 54. In addition, 
even a single page of Web content could have some content 

prohibited under COPA and some that was not, making it 
difficult if not impossible to segregate such content. See Id. 
77a-78a, ¶ 55. Moreover, content providers using COPA’s 

credit card defense “would need to undertake several 
steps,” Id. 72a, ¶ 41, with start-up costs ranging from 

28 

“approximately $300 . . . to thousands of dollars. . . .” Id. 

72a, ¶ 42. 

Web speakers are faced with two strong incentives to 
self-censor: financial burdens and the risk of criminal 
penalties. Because registration requirements would deter 

readers and thereby decrease advertising revenue, many 
Web sites would choose to self-censor rather than attempt to 
implement a burdensome registration scheme. J.A. 256 

(Hoffman Testimony). As David Talbot, CEO of Salon 
Magazine, explained, 

One of our competitors, Slate Magazine, which 
is owned and operated by Microsoft, launched 
originally as a free site like Salon did, but 

about a year ago decided to go to a 
[subscription] model with disastrous results 
for their circulation. Their circulation 

plummeted overnight from . . . over 150,000 
individual users each month to about 20 to 
30,000 . . . . That wouldn’t be enough 

circulation to sustain Salon’s business because 
advertisers expect you to have a certain 
circulation level before they’ll do business with 

you. And, that typically is at least over 100,000 
per month. 

J.A. 144 (Talbot Testimony). 

See also J.A. 330-31 (Barr 

Testimony) (CNET would choose to self-censor rather than 
impose registration scheme); J.A. 225-27 (Hoffman 
Testimony) (study found consumers will not register at Web 

sites); J.A. 343-44 (Tepper Testimony) (Sexual Health 
Network believes its traffic will stop and its Web site will 
cease to have value if barriers to access are put in place). 

Similarly, in striking down the CDA this Court 
found that “[t]here is concern by commercial content 

providers that age verification requirements would decrease 

29 

advertising and revenue because advertisers depend on a 
demonstration that the sites are widely available and 
frequently visited.” ACLU I, 521 U.S. at 857 n.23. The 
district court here thus correctly concluded 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.” Pet. App. 89a. 

This Court has routinely struck down such economic 
burdens on the exercise of protected speech. See, e.g., Simon 

& Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 
502 U.S. 105, 115 (1991) (“A statute is presumptively 
inconsistent with the First Amendment if it imposes a 

financial burden on speakers because of the content of their 
speech.”); Erznoznik, 422 U.S. at 217 (invalidating a statute 
that in effect required drive-in theater owners wishing to 

avoid prosecution either to restrict their movie offerings or 
construct expensive protective fencing). 

Relying heavily on the adult access code defense, the 
government’s brief overlooks all the evidence in the record 
that adult access codes burden speech. Adult access codes 

impose the burdens discussed above, and indeed are more 
likely to deter users in some circumstances. For example, 
users are reluctant to use adult access codes because they 

are associated with the pornography industry. Plaintiffs 
testified that their users would forego accessing their 
content rather than apply for adult access codes. J.A. 137-38 

(Laurila Testimony); see also Stmt. of the Case, supra at 10-11; 
Denver Area, 518 U.S. at 754 (discussing fear of social stigma 
if persons are required to affirmatively request “patently 

offensive” materials). Adult access codes also impose 
monthly or yearly fees upon all users, even those who want 
to view only one Web site on one occasion. See Pet. App. 
76a, ¶¶ 51-53; see also Denver Area, 518 U.S. at 754 (noting 

30 

restrictive effect of requirement that would not allow a user 
to select one “patently offensive” program to view). 

C. COPA Is Not Narrowly Tailored To 

Advance The Government’s Asserted 

Interest 

COPA also fails strict scrutiny because it would not 
even advance the government’s asserted interest. Even if 

the government has a compelling interest in protecting some 
minors from material that may be harmful, which it did not 
prove,9 COPA is far from narrowly tailored to achieve that 

goal.10 Under strict (and even intermediate) scrutiny, a law 
“may not be sustained if it provides only ineffective or 
remote support for the government’s purpose.” Central 

Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 
564 (1980). COPA fails this test. COPA does not restrict the 
wide range of “harmful to minors” materials provided non- 
commercially on the Web, and through non-Web protocols 
on the Internet such as newsgroups and non-Web chat 
rooms. See Pet. App. 93a. In addition, at least forty percent 
of Web content originates abroad, and COPA has no effect 
on this foreign Web content. See id. 62a, ¶ 20, 93a. These 
flaws “demonstrate[] the problems this statute has with 

efficaciously meeting its goal.” Id. 93a.11 

9 See Amicus Curiae Brief on Behalf of Society for the 

Scientific Study of Sexuality, et al. 
10 The government offered no evidence to support its new 
assertion that “[p]ornography is harmful to children because it 
does not provide them with a normal sexual perspective.” 
Gov. Br. at 3. 
11 In fact, former Attorney General Janet Reno herself 
recognized this defect. In a letter sent to Congress before 
COPA passed, the Attorney General stated: 

Such a diversion [of law enforcement resources] 
would be particularly ill-advised in light of the 
uncertainty concerning whether the COPA 
would have a material effect in limiting minors’ 

31 

In contrast, the district court identified effective and 
less restrictive alternatives to COPA’s criminal penalties. 

See Pet. App. 93a-95a. The government’s expert conceded 
that, unlike COPA, parental use of blocking software can 
prevent access to foreign sites, content on non-Web-based 
protocols, and material from non-commercial Web sites. See 
Pet. App. 81a-82a, ¶ 65, 94a. As the district court held, 
“blocking or filtering technology may be at least as 
successful as COPA would be in restricting minors’ access to 

harmful material online without imposing the burden on 
constitutionally protected speech that COPA imposes on 
adult users or Web site operators.” Pet. App. 94a. Although 

user-based blocking programs are not perfect, both because 
they fail to screen some inappropriate material and because 
they block some valuable Web sites, a voluntary decision by 

concerned parents to use these products for their children 
constitutes a far less restrictive alternative than COPA’s 
imposition of criminal penalties for protected speech among 

adults. See Pet. App. 94a-95a; see also ACLU I, 521 U.S. at 
879. 

Congress itself has recognized the usefulness of user- 
based blocking software through another provision enacted 
along with COPA, and not challenged here, that requires 

Internet service providers to “notify [all new customers] that 
parental control protections (such as computer hardware, 
software or filtering services) are commercially available 

access to harmful materials. There are 
thousands of newsgroups and Internet relay 
chat channels on which anyone can access 
pornography; and children would still be able 
to obtain ready access to pornography from a 
myriad of overseas web sites. 

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

32 

that may assist the customer in limiting access to material 
that is harmful to minors.” 47 U.S.C. § 230(d). Congress 
also established a Commission on Online Child Protection, 

when it enacted COPA, to study methods of reducing 
minors’ access to harmful materials. 112 Stat. 2681-736. 
That Commission ultimately concluded that user-based 

alternatives were more effective and less restrictive than 
COPA. Comm. on Child Protection Report to Congress 
(Oct. 20, 2000), available at 
http://www.copacommission.org/report/COPAreport.pdf. 

The government wrongly argues that the court of 

appeals’ holding is flawed because it did not rely on the less 
restrictive alternatives to COPA identified by the district 
court. See, e.g., Gov. Br. at 12-13. First, the court of appeals 
clearly affirmed the findings of the district court regarding 
the availability and effectiveness of user-based blocking 
software.12 See Pet. App. 11a-13a. Second, though the court 
of appeals opined in dicta that voluntary alternatives could 
not constitute less restrictive alternatives because they were 
not government action, the court of appeals itself 

acknowledged that this Court had ruled to the contrary. See 
Pet. App. 15a n.16 (citing Playboy). 

This Court has specifically relied on the ability of 
parents to block objectionable content as “less restrictive 
than [government] banning.” Playboy, 529 U.S. at 815 
(finding that requiring cable operators upon request by a 
subscriber to scramble or block any unwanted channel was 

12 The district court had also noted that the government 
could draft a narrower statute. See Pet. App. 94a-95a. Even if 
there were no less restrictive alternatives, though, it is clear 
that the government “may not regulate at all if it turns out that 
even the least restrictive 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 (2d Cir. 1988). 

33 

a less restrictive alternative than forcing operators to 
scramble channels as a default); see also ACLU I, 521 U.S. at 
876-77 (finding that less restrictive alternatives would be at 

least as effective in achieving the Act’s legitimate purposes 
and citing to the district court’s findings that parents can 
prevent their children from accessing material); Denver Area, 
518 U.S. at 759-60 (informational requirements and user- 
based blocking are more narrowly tailored than speaker- 
based schemes as a means of limiting minors’ access to 

indecent material on cable television). 

Thus, both Congress and this Court have 

acknowledged that parents can voluntarily block 
objectionable content, which supports the district court’s 
finding that there are effective and less restrictive 

alternatives to COPA’s ban on constitutionally-protected 
speech. 

II. COPA UNCONSTITUTIONALLY IMPOSES THE 
MOST RESTRICTIVE COMMUNITY’S 

STANDARDS ON WEB SPEECH NATIONWIDE13 

A. The Court Of Appeal’s Reasoning Is Correct 

Under Miller And Its Progeny 

Relying on the clear rulings of this Court, the court 

of appeals correctly held that COPA is unconstitutionally 
overbroad because it subjects Web speakers across the 
nation to the most restrictive community’s standards for 

what is “harmful to minors.” As the record shows, Web 
speakers have no way to determine the characteristics of 
their audience---whether age or geographic location. See 
Stmt. of the Case, supra at 7. Just as the inability under 
COPA to verify age on the Web transforms a standard 

13 Despite the government’s assertion to the contrary, see 

Gov. Br. at 12, the “community standards” problem was not 
raised for the first time by the court of appeals. See J.A. 47, 

26, 
63, 83, 64, 85, 102, 200 (Complaint). 

34 

aimed at minors into one that censors adults, the inability to 
verify the geographic location of Web users transforms 
COPA’s “community standards” requirement into a 

national mandate of the most restrictive community’s 
standards. The government does not attempt to challenge 
the long-standing doctrine prohibiting a national 

standard,14 or the factual findings that inevitably led the 
court of appeals to conclude that COPA violates that 
doctrine. Rather, the government tries to limit the 

unconstitutional impact of community standards on the 
Web by relying on facts contradicted by the actual record 
and on a myopic view of the relevant case law. A brief 

historical review of the standard should inform the Court’s 
analysis. 

The “community standards” doctrine was first 
applied to state obscenity laws. In Roth v. United States, 354 
U.S. 476, 489 (1957), this Court defined the obscenity test as 

whether “the average person, applying contemporary 
community standards, [finds that] the dominant theme of 
the material taken as a whole appeals to prurient interest.” 

Following Roth, the justices disagreed about whether 
“community standards” should be local or national. See A 
Book Named ‘John Cleland’s Memoirs of a Woman of Pleasure’ v. 

Massachusetts, 383 U.S. 413 (1966); Jacobellis v. Ohio, 378 U.S. 
184, 200 (1964) (Warren, C.J., dissenting). The Court 
resolved the debate in Miller v. California, 413 U.S. 15 (1973), 
and articulated the local community standards doctrine that 

14 The broadcast medium is the only medium in which this 

Court has upheld a national standard for “patently offensive” 
content, defined by a federal administrative agency. See FCC v. 
Pacifica Found., 438 U.S. 726 (1978). Here, COPA requires juries 
around the country, not a single federal agency, to determine 
what is “patently offensive.” This Court specifically rejected 
the government’s attempt to treat the Internet like broadcast. 
ACLU I, 521 U.S. at 866-67. 

35 

has governed for almost 30 years. See id. at 30-31.15 In 
defining the permissible scope of speech regulation, this 
Court specifically adopted a local community standards test, 
noting that a national standard would not be 
“constitutionally sound.” Id. at 32. “People in different 
States vary in their tastes and attitudes, and this diversity is 

not to be strangled by the absolutism of imposed 
uniformity.” Id. at 33. “[O]ur Nation is simply too big and 
too diverse for this Court to reasonably expect that such 

standards could be articulated for all 50 states in a single 
formulation.” Id. at 30. 

Shortly before Miller, this Court issued its only 
opinion to date regarding the constitutionality of a state 
statute that made it a crime to sell material directly to 

minors that was obscene as to minors, but not as to adults. 

Ginsberg v. New York, 390 U.S. 629 (1968). In lower court 
cases following Ginsberg, such statutes became known as 
variable obscenity or harmful-to-minors statutes. After the 
Court’s articulation of the new obscenity test in Miller, state 
harmful-to-minors statutes were amended or interpreted to 

apply a local community standards test. See, e.g., Virginia v. 
American Booksellers Ass’n, 484 U.S. 383 (1988). 

B. The Facts Establish That COPA 

Unconstitutionally Imposes The Most 

Restrictive Community Standards On All 

Web Speech 

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

36 

The language denoting local community standards 
in COPA is modeled on Ginsberg and Miller. COPA 
criminalizes “prurient” material as judged by “the average 

person, applying contemporary community standards.” Miller, 
413 U.S. at 24 (citations omitted) (emphasis added). The 
impact of this standard on the Web is fundamentally 

different than its impact on other media. The government 
itself stipulated at the preliminary injunction hearing 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 geographic 
community.” See J.A. 187, ¶ 41 (Joint Stipulations for the 
Preliminary Hearing); Pet. App. 62a, ¶ 18. The government 
saw no reason to re-litigate this quintessential feature of the 
Internet, which was clearly established in ACLU I, 521 U.S. 
at 853 (quoting district court). Unsurprisingly, it chose not 
to challenge the finding on appeal. Pet. App. 12a. 
Especially on appeal from a preliminary injunction, the 

government cannot now try to negate its stipulation and the 
district court findings by relying on unsupported facts not 
in the record. See Gov. Br. at 29 n.3.16 

16 The government cites two articles and the decision of a 

French trial court, see Gov. Br. at 29 n.3, but ignores all of the 
American courts that, after evidentiary hearings, have 
specifically found that online speakers cannot determine the 
geographic location of their readers. See infra at 39. In 
addition, the experts on which the French court relied have 
largely repudiated that court’s conclusion. See Complaint For 
Declaratory Relief, Yahoo! Inc. v. La Ligue Contre Le 
Racisme Et L’Anti-Sémitisme (N.D. Cal. Dec. 21, 2000) 
available at http://www.cdt.org/speech/international/ 
0011221yahoo complaint.pdf, ¶¶ 22-24, 26-28, 31. Finally, the 
French court relied, in part, on the fact that most French 
Internet users have e-mail addresses that contain the 
designation “.fr,” indicating that their account is based 
in France. See Interim Court Order, La Ligue Contre Le 
Racisme Et L’Anti-Sémitisme v. Yahoo! Inc. (T.G.I. Paris 

37 

Because Web speakers are without any means to 
limit access to their sites based on the geographic location of 
particular users, they must conform to the standards of the 

most conservative community or risk criminal prosecution 
when their speech is accessed in those communities. 
Plaintiffs testified that they had no way to prevent their 

material, which they believe is valuable, from reaching 
communities that might find it harmful to minors. See, e.g., 
J.A. 110 (Laurila Testimony) (“we have no knowledge of 

who you are or where you’re coming from or anything 
else”). In addition, the district court found that the burdens 
of segregating Web content could be substantial. Pet. App. 

71a, ¶ 39, 78a, ¶ 56. If speakers were required to create and 
segregate different versions of content in order to conform 
to the varying standards of a multitude of communities 

throughout the United States, these burdens would increase 
exponentially. See Stmt. of the Case, supra at 10-11. 

Based on the government’s own stipulation and the 
testimony at the hearing, the Third Circuit thus correctly 
held that COPA must be enjoined because speakers could be 

jailed for providing content that is constitutionally protected 
in many communities: 

[T]o avoid liability under COPA, affected Web 
publishers would either need to severely censor 
their publications or implement an age or credit 

card verification system whereby any material 
that might be deemed harmful by the most 
puritan of communities in any state is shielded 

behind such a verification system. Shielding 
such vast amounts of material behind 

Nov. 20, 2000) English translation available at 
http://www.istf.org/archive/yahoo_france.html. No 
similar designation is given to distinguish users from specific 
U.S. states. 

38 

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 “harmful” to them 
in their respective geographic communities. 

Pet. App. 24a-25a; see also id. 29a. 

The Third Circuit relied directly on ACLU I, in which 
this Court also found that Web speakers are unable to 

prevent their speech from reaching a particular geographic 
community. 521 U.S. at 853. Practically, “when the 
UCR/California Museum of Photography posts to its Web 

site nudes by Edward Weston and Robert Mapplethorpe to 
announce that its new exhibit will travel to Baltimore and 
New York City, those images are available not only in Los 

Angeles, Baltimore, and New York City, but also in 
Cincinnati, Mobile, or Beijing.” Id. at 854 (quoting district 
court). The Court recognized in ACLU I that the CDA’s use 
of community standards contributed to the statute’s 
overbreadth, stating 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 the community most likely to be 
offended by the message.” Id. at 877-78. 

A number of other courts have also found that the 
inability to know the location of Web users causes 

constitutional problems in statutes that restrict online 
speech. As the court in American Library Ass’n v. Pataki 
explained, 

The Internet is wholly insensitive to 
geographic distinctions. In almost every case, 

users of the Internet neither know nor care 

39 

about the physical location of the Internet 
resources they access. Internet protocols were 
designed to ignore rather than document 

geographic location; while computers on the 
network do have “addresses,” they are logical 
addresses on the network rather than 

geographic addresses in real space. 

969 F. Supp. 160, 170 (S.D.N.Y. 1997). In ACLU v. Johnson, 
the Tenth Circuit similarly found that “‘geography . . . is a 

virtually meaningless concept on the Internet.’” 194 F.3d 
1149, 1161 (10th Cir. 1999) (quoting Pataki, 969 F. Supp. at 
166-67, 171, in striking down online harmful-to-minors law 

as violation of First Amendment and dormant Commerce 
Clause); see also Cyberspace Communications, Inc. v. Engler, 55 
F. Supp. 2d 737, 741 (E.D. Mich. 1999) (“virtually all Internet 

speech is . . . available everywhere.”), aff’d, No. 99-2064, 2000 
WL 1769592 (6th Cir. Nov. 15, 2000); PSINet v. Chapman, 108 
F. Supp. 2d 611, 616 (W.D. Va. 2000) (“There is no practical 

way for an Internet speaker to prevent a message from 
reaching residents of his own or any particular state.”). As a 
number of courts have now held, online speakers simply 

have no way to conform their speech to the standards of all 
geographic communities. “As the poet said, ‘I shot an arrow 
into the air; it fell to the earth I know not where.’” Pataki, 
969 F. Supp. at 167. 

40 

C. The Government Presented No Evidence 

That Community Standards Are 

“Reasonably Constant” Across America, 

And Such An Interpretation Would Not 

Save The Statute 

Even Congress realized that “the applicability of 

community standards in the context of the Web is 
controversial.” H.R. Rep. No. 105-775, at 27 (1998). In an 
attempt to sidestep this defect, the government relies on a 

purported Congressional finding to argue that the “harmful 
to minors” standard is “reasonably constant” across the 
United States.17 See Gov. Br. at 36-38. But no semantic trick 
will cure the overbreadth caused by imposing local 
community standards on the borderless medium of the 
Web. The government cannot argue for a national standard 

of what is harmful to minors without violating this Court’s 
teaching in Miller. To the extent its “reasonably constant” 
argument does not argue for a national standard, the 
government concedes that COPA would unquestionably 
prevent adults from accessing speech that they have a 
constitutional right to receive. Gov. Br. at 41. The evidence 

shows that COPA affects millions of Web pages and 
interactive messages. Pet. App. 55a-56a, ¶¶ 1-2. Contrary to 
the government’s argument, then, requiring the vast amount 

of potentially harmful-to-minors speech on the Web to 
conform to different standards would impose a tremendous 
burden even if there is only some variation between 

17 The government also argues that COPA’s community 
standards are not meant to be geographic, but rather the 
standards of the adult community as a whole, “without 
geographic specification.” See Gov. Br. at 28 n.2. Especially if 
juries are instructed to consider the Web “a national medium,” 
see Gov. Br. at 38-39, this interpretation also essentially imposes 
a national standard in violation of Miller. 

41 

communities. Thus, the preliminary injunction must be 
affirmed because COPA burdens a significant amount of 
protected speech even if standards are assumed to be 

“reasonably constant.” 
But as the court of appeals correctly 

noted, “we have before us no evidence to suggest that adults 

everywhere in America would share the same standards for 
determining what is harmful to minors.” Pet. App. 31a. 
Indeed, the government put on no evidence at trial to 
suggest that standards were constant.18 

The record and the government’s own position in 
this case illustrate that COPA would subject plaintiffs and 

other speakers to widely different community standards 
across the country. The government itself has been 
inconsistent in its interpretation of what speech meets the 

standard. The government explicitly assured the district 
court on at least two separate occasions that plaintiffs’ 
materials are not harmful to minors.19 However, despite 

these assertions, the government now suggests that “[s]ome 
of respondents’ exhibits . . . plainly do test, and likely 
exceed, the legal limitations imposed by th[e] three prongs” 

of the harmful-to-minors test. See Gov. Br. at 37. In contrast, 
Members of Congress who sponsored COPA have filed an 
amicus brief asserting that all of the plaintiffs’ speech is 

18 The government also argues that the serious value prong 
(which is a national standard) creates a national floor, Gov. Br. 
at 34-35, and that “the legal limitations on what can be found to 
satisfy the first two prongs of the harmful-to-minors standard 
can be enforced by a reviewing court,” Gov. Br. at 36. But 
these arguments applied in Miller and its progeny as well, and 
the Court nonetheless held that a nationwide standard for all 
three prongs would be defective. 
19 See Closing Statement of Senior Trial Counsel Karen 

Stewart, January 26, 1999 at 253 (“plaintiffs’ materials are not 
harmful to minors”); Testimony of Trial Attorney Rupa 
Bhattacharyya, January 27, 1999 at 39 (“defendant feels that the 
plaintiffs’ materials are not harmful to minors”). 

42 

protected. Brief of Amici Curiae Members of Congress, 
Senator John S. McCain et al. at 19. It is difficult to imagine 
how community standards can be “reasonably constant” 

across America when they are not even constant between 
the sponsors of COPA and the small group of lawyers 
defending it. 

The plaintiffs also testified that while they believe 
their speech is valuable, some communities might find it 

harmful to minors. For example, Ernest Johnson of 
Artnet.com testified that Jock Sturges photographs were 
available on his site, but that Sturges photographs had been 

targeted as obscene in Alabama and Tennessee. S.L. 14 
(Johnson Decl.). Tom Reilly of PlanetOut testified that in his 
experience small town community standards regarding 

discussions of sexual orientation were different than the 
standards of his lesbian and gay readers. J.A. 356-58 (Reilly 
Testimony). 

Other indicators make it clear that communities 
disagree about what material is appropriate for minors -- 

just as they did when this Court first adopted local 
community standards in Miller. 

First, the state harmful-to- 
minors laws themselves--on which COPA was modeled--are 

not uniform in what material they proscribe. Some prohibit 
mere nudity if it is “patently offensive,” while others 
prohibit only specifically defined sexual content. Compare 
D.C. Code Ann. § 22-2201(b) (WESTLAW 2000); Idaho Code 
§§ 18-1514, 1515 (WESTLAW 2000), with La. Rev. Stat. § 
14:91.11. (WESTLAW 2000). Some prohibit mere display of 

harmful materials, while others prohibit only the direct sale 
of materials to others. Compare Ala. Code § 13A-12- 
200.5(2)(a) (WESTLAW 2001) with N.Y. Penal Law § 235.21.1 
(McKinney 1999). At least one state has recently upheld a 
conviction for exposing a child to a photograph of “a 
woman with shirt and jacket open to the waist, without 

exposing her nipples,” State v. Stankus, No. 95-2159-CR, 1997 

43 

WL 58727, at *1 (Wisc. App. Feb. 13, 1997); other states only 
prohibit fully-exposed breasts, S.C. Code Ann. § 6-15-375, as 
amended (WESTLAW 2000). 

Several recent surveys also show that communities 
around the country have decidedly different views about 

what may be harmful to minors. For example, one survey 
establishes that more than 20% of school districts in the 
northeast have comprehensive sex education programs (as 

compared to abstinence-only programs), while only 5% of 
school districts in the south provide comprehensive 
programs.20 Attitudes also differ widely about whether it is 

harmful to expose children to homosexuality. While some 
school districts actively promote “gay/straight alliance” 
clubs, others have completely eliminated all extracurricular 

clubs just to prevent such clubs from forming. See, e.g., 
Judge: It’s Legal to Ban School Clubs, But East High Gay Group 
Can Sue, Salt Lake Tribune, Oct. 8, 1999 at 1 (community 
bans all extracurricular clubs in order to prevent 
gay/straight alliance). In addition, polls show that 52% of 
people in the south believe that homosexuals should not be 

hired as elementary school teachers, while only 30% of 
people in the east hold that belief. See Gallup Poll, Feb. 22, 
1999, available at LEXIS News Library, RPOLL File, 
Accession No. 0322043. Similarly, 66% of people in the 
south believe that homosexual couples should not be 
permitted to adopt children, compared to only 46% of 

easterners. See Yankelovich Partners Poll, Oct. 16, 1998, 
available at LEXIS News Library, RPOLL File, Accession No. 

20 See Alan Guttmacher Institute, Sex Education: Politicians, 

Parents, Teachers and Teens, available at http://www.agi- 
usa.org/pubs/journals/gr040109.html (2001); see also Centers 
for Disease Control, Surveillance for Characteristics of Health 
Education Among Secondary Schools -- School Education Profiles 
(1998) (finding that schools differ regarding whether they teach 
how HIV is transmitted or how to use condoms). 

44 

0312302. Moreover, each year the American Library 
Association documents community-based attempts to ban 
books such as The Catcher in the Rye, by J.D. Salinger, and the 

Harry Potter books, by J.K. Rowling--books that are 
considered mainstream and required reading in other 
communities. See The 100 Most Frequently Challenged Books of 

1990-1999, available at http://www.ala.org/bbooks/ 
top100bannedbooks1999.html. All of these attempts, 
whether or not they rely on legal prohibitions, are based on 

presumed harm to minors. Thus, they all illustrate that 
attitudes about what is appropriate or harmful for minors 
are very far from “reasonably constant across America.”21 

D. The Court of Appeals’ Reasoning Is Fully 

Consistent With Hamling and Sable 

The government argues that subjecting the same 
speaker to varying standards is not unusual or 
unconstitutional, citing Hamling v. United States, 418 U.S. 87 
(1974), and Sable, 492 U.S. 115. See Gov. Br. at 14, 17, 31-33. 
As the court of appeals held, however, those cases are 
“easily distinguishable from the present case.” Pet. App. 

26a. Sable and Hamling involved the regulation of the actual 
sale of pornography by phone and through the mail, 
respectively. In both instances, the services were provided 

only to paid subscribers, and providers could simply refuse 
to send the material to subscribers living in more 
conservative geographic communities. Unlike Web 

speakers, then, the phone and mail providers in those cases 
could control the distribution of controversial material in 
particular geographic communities. See Pet. App. 26a; see 

also Sable, 492 U.S. at 125-26; Hamling, 418 U.S. at 106. 

In addition, the speech affected by COPA is quite 

different than the speech affected by the phone and mail 

21 See also Amicus Curiae Brief on Behalf of Volunteer 

Lawyers for the Arts and People for the American Way. 

45 

service restrictions. The number and range of providers is 
astronomically greater, and includes valuable information 
about sexual dysfunction, gay and lesbian resources, and art 

that may nevertheless be harmful to minors in some 
communities. See Pet. App. 52a-53a, 63a, ¶ 21. The vast 
majority of the content is provided free of charge. The 

chilling effect of requiring speakers to abide by the 
standards of every community would thus be even greater 
when applied to the Web. In stark contrast to the discreet 

industries at issue in Hamling and Sable, the low barriers to 
access on the Web provide a nationwide forum to a vast 
range of speakers who cannot afford legal counsel, who 

have no industry guidelines to follow, and whose Web 
content is not their primary business. See ACLU I, 521 U.S. 
at 870. When faced with the threat of criminal penalties, 

these speakers would almost certainly err on the side of 
eliminating content if there were even the slightest chance 
that it could be considered “harmful” in conservative 

communities. 

This Court has recognized that each medium of 

expression is unique, and “must be assessed for First 
Amendment purposes by standards suited to it.” 

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 
(1975); see also Playboy, 529 U.S. at 813. In contrast to 
speakers using other media, Web speakers cannot restrict 
access to their speech based on the geographic location of 

their users. See Pet. App. 26a. “‘[A]n Internet user cannot 
foreclose access to . . . work from certain states or send 
differing versions of . . . communication[s] to different 

jurisdictions. . . . The Internet user has no ability to bypass 

any particular state.’” Pet. App. 26a-27a (citing Pataki, 969 F. 
Supp. at 183). Given the unique features of the Web, COPA 

forces Web speakers to either comply with the most 
stringent standard or “‘[entirely] forego Internet 
communication of the message that might or might not 

46 

subject [the publisher] to prosecution.’” Pet. App. 27a 
(citing Pataki, 969 F. Supp. at 183) (alterations in original). 

Clearly unable to meet its actual burden of proving 
that COPA meets the strictest constitutional scrutiny, the 
government warns that affirming the Third Circuit’s 

reasoning would render state harmful-to-minors laws 
“largely meaningless.” See Gov. Br. at 25. But the 
government distorts the current state of the law. According 

to the Government’s own tally, only half of the states even 
have harmful-to-minors laws that prohibit the display— 
rather than the direct sale—of such materials to minors. See 
Gov. Br., App. II. This Court has never upheld the 
constitutionality of these laws,22 and some courts have 
recognized constitutional problems with their application 

even to the print medium.23 To the extent these laws are 
valid in the print medium, COPA does nothing to prevent 
their application. In addition, any interest that Alabama, for 

example, has in its harmful-to-minors display law does not 
justify imposing COPA’s prohibitions on each of the 
majority of states that has specifically rejected even a print 

display statute. Indeed, because of the unique qualities of 
the online medium, courts have uniformly rejected the 
application of state harmful-to-minors statutes to the 

Internet; the government conveniently ignores these cases.24 

22 The closest the Court came to deciding the 
constitutionality of such a statute was Virginia v. American 
Booksellers, in which it stated that the law could present 
“substantial constitutional questions” depending on its impact 
on adult speech. 484 U.S. 383, 394 (1988). 
23 See, e.g., Webb, 919 F.2d at 1504-05, 1508-09; American 

Booksellers Ass’n v. Rendell, 481 A.2d 919, 938-39 (Pa. 1984); 
Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 
1993); Virginia v. American Booksellers Ass’n, 372 S.E.2d 618, 625 
(Va. 1988). 
24 Suggesting a narrower way to protect minors, courts have 
held that statutes which prohibit the use of harmful-to-minors 

47 

See Cyberspace Communications v. Engler, No. 9902064, 2000 
WL 1769592 (6th Cir. Nov. 15, 2000); ACLU v. Johnson, 194 
F.3d 1149 (10th Cir. 1999); PSINet, Inc. v. Chapman, 108 F. 
Supp. 2d 611 (W.D. Va. 2000); Pataki, 969 F. Supp. at 169. 

Far from maintaining the status quo, COPA would 

impose a radical new federal censorship regime. Never 
before has there been a federal criminal harmful-to-minors 
law for any medium--COPA is the first. As the Court said in 

ACLU I, 

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. The interest in encouraging 
freedom of expression in a democratic society 

outweighs any theoretical but unproven 
benefit of censorship. 

521 U.S. at 885. This Court should thus affirm the Third 

Circuit’s ruling that local community standards, while 
workable in narrow circumstances for other media, 
unconstitutionally restrict adults from communicating and 

accessing protected speech on the Web. 

materials for the purpose of soliciting minors can be 
constitutionally applied to the Internet. See, e.g., People v. 
Barrows, 677 N.Y.S.2d 672 (Sup. Ct. 1998), rev’d in part on other 
grounds, 709 N.Y.S.2d 573 (App. Div. 2000); Hatch v. Superior 
Court, 94 Cal. Rptr. 2d 453 (Cal. App. 2000). 

48 

CONCLUSION 

For the reasons stated above, plaintiffs respectfully 

ask this Court to affirm the preliminary injunction against 
the Child Online Protection Act. 

Respectfully submitted, 

Ann E. Beeson 

Counsel of Record 

Christopher A. Hansen 

Steven R. Shapiro 

American Civil Liberties Union Foundation 

125 Broad Street, 18th Floor 

New York, NY 10004 

(212) 549-2500 

Stefan Presser 

American Civil Liberties Union of 

Pennsylvania 

125 South 9th Street, Suite 701 

Philadelphia, PA 19107 

(215) 592-1513 ext. 216 

David L. Sobel 

Electronic Privacy Information Center 

1718 Connecticut Avenue NW 

Washington, DC 20009 

(202) 483-1140 

49 

Lee Tien 

Electronic Frontier Foundation 

454 Shotwell Street 

San Francisco, CA 94110 

(415) 436-9333 

Attorneys for All Respondents 

Alexandra A.E. Shapiro 

Christopher R. Harris 

Michele M. Pyle 

Mark H. Goldberg 

Latham & Watkins 

885 Third Avenue, Suite 1000 

New York, NY 10022 

(212) 906-1200 

Of Counsel to American Civil Liberties Union 
Foundation on behalf of respondents 

American Civil Liberties Union, Androgyny 
Books, Inc. d/b/a A Different Light 
Bookstores, Artnet Worldwide Corporation, 

BlackStripe, Adazzi Inc. d/b/a Condomania, 
Electronic Frontier Foundation, Electronic 
Privacy Information Center, Free Speech 

Media, OBGYN.net, Philadelphia Gay News, 
PlanetOut Corporation, Powell’s Bookstore, 
RiotGrrl, Salon Internet, Inc. and West Stock, 

Inc., now known as ImageState North 
America, Inc.