AMERICAN CIVIL LIBERTIES UNION; ANDROGYNY BOOKS, INC. d/b/а A DIFFERENT LIGHT BOOKSTORES; AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION; ARTNET WORLDWIDE CORPORATION; BLACKSTRIPE; ADDAZI INC. d/b/a CONDOMANIA; ELECTRONIC FRONTIER FOUNDATION; ELECTRONIC PRIVACY INFORMATION CENTER; FREE SPEECH MEDIA; INTERNET CONTENT COALITION; OBGYN.NET; PHILADELPHIA GAY NEWS; POWELL’S BOOKSTORE; RIOTGRRL; SALON INTERNET, INC.; WEST STOCK, INC.; PLANETOUT CORPORATION v. JOHN ASHCROFT, in his official capacity as ATTORNEY GENERAL OF THE UNITED STATES
No. 99-1324
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 6, 2003
BEFORE: NYGAARD and McKEE, Circuit Judges, and GARTH, Senior Circuit Judge
PRECEDENTIAL. Appealed from the United States District Court for the Eastern District of Pennsylvania (No. CIV.A.98-5591). District Judge: Honorable Lowell A. Reed, Jr. Originally Argued November 4, 1999. On Remand from the United States Supreme Court (No. 00-1293). Argued on Remand October 29, 2002.
Douglas A. Griffin Catherine E. Palmer Michele M. Pyle Katherine M. Bolger Christopher R. Harris Latham & Watkins 885 Third Avenue Suite 100 New York, New York 10022-4802
Ann E. Beeson (Argued) Christopher A. Hansen American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004
John C. Salyer American Civil Liberties Union of New Jersey Foundation P.O. Box 750 Newark, New Jersey 07101 Attorneys for Appellee American Civil Liberties Union
John C. Salyer Christopher A. Hansen Ann E. Beeson Stefan Presser American Civil Liberties Union of Pennsylvania 125 South Ninth Street, Suite 701 Philadelphia, Pennsylvania 19107
Attorneys for Appellees Androgyny Books, Inc., d/b/a A Different Light Bookstores; American Booksellers Foundation for Free Expression; Artnet Worldwide; Blackstripe; Addazi, Inc., d/b/a Condomania; Electronic Frontier Foundation; Electronic Privacy Information Center; Free Speech Media; Internet Content Coalition; OBGYN.Net; Philadelphia Gay News; Powell’s Bookstore; Riotgrrl; Salon Internet, Inc.; West Stock, Inc.; Planetout Corporation
David L. Sobel Electronic Privacy Information Center 666 Pennsylvania Ave., S.E. Suite 301 Washington, D.C. 20003 Attorney for Appellee Electronic Privacy Information Center
Lee Tien Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 Attorney for Appellee Electronic Frontier Foundation
Paul J. McGeady Mary McNeill Of counsel 475 Riverside Drive New York, New York 10115
David P. Affinito Counsel of Record Morality in Media, Inc. American Catholic Lawyers Association Dell’Italia, Affinito, Jerejian & Santola 18 Tony Galento Plaza Orange, New Jersey 07050 Attorneys for Amici Curiae-Appellant Morality in Media, Inc., American Catholic Lawyеrs Association
Bruce A. Taylor Counsel of Record Carol A. Clancy Co-Counsel National Law Center for Children and Families 3819 Plaza Drive Fairfax, Virginia 22030-2512
James J. West Local Counsel 105 North Front Street Harrisburg, Pennsylvania 17101 Attorneys for Amici Curiae-Appellant John S. McCain, Senator; Dan Coats, Senator; Thomas J. Bliley, Representative; Michael G. Oxley, Representative; James C. Greenwood, Representative
Janet M. LaRue Family Research Council 801 G Street, N.W. Washington, D.C. 20001 Attorney for Amicus Curiae-Appellants Family Research Council; Enough is Enough; The Jewish Policy Center
Paula Bruening John B. Morris, Jr. Alan B. Davidson Center for Democracy & Technology 1634 I Street, N.W., Suite 1100 Washington, D.C. 20006
R. Bruce Rich Jonathan Bloom Counsel for the Association of American Publishers, Inc. Weil, Gotshal & Manges LLP 767 Fifth Avenue, 17th Floor New York, New York 10153
Richard M. Schmidt, Jr. Kevin M. Goldberg Counsel for the American Society of Newspaper Editors Cohn and Marks LLP 1920 N. Street, N.W., Suite 300 Washington, D.C. 20036
Burt Joseph Barsy Joseph and Lichtenstein Counsel for the Comic book Legal Defense Fund 12 W. 15th Street Chicago Heights, Illinois 60411
Edward J. Black Jason Mahler Computer and Communications Industry Association 666 11th Street, N.W. Washington, D.C. 20001
Elliot M. Mincberg Lawrence S. Ottinger People for the American Way Foundation 2000 M Street, N.W., Suite 400 Washington, D.C. 20036
Lloyd J.
Bruce W. Sanford Robert D. Lystad Bruce D. Brown Counsel for the Society of Professional Journalists Baker & Hostetler LLP 1050 Connecticut Avenue N.W., Suite 1100 Washington, D.C. 20036 Attorneys for Amicus Curiae-Appellees The American Society of Newspaper Editors; The American Association of Law Libraries; Bibliobytes, Inc.; The Center for Democracy & Technology; The Comic Book Legal Defense Fund; The Commercial Internet Exchange Association and PSINET, Inc.; Freedom to Read Foundation; The Information Technology Association of America; Internet Alliance; Magazine Publishers of America; The National Association of Recording Merchandisers; People for the American Way; Periodical Book Association; PSINET, Inc.; The Publishers Marketing Association; The Recording Industry Association of America; The Society for Professional Journalists
Stephen A. Bokat National Chambers Litigation Center 1615 H St., N.W. Washington, D.C. 20062
Bruce J. Ennis Jenner & Block 601 13th Street, N.W. 12th Floor Washington, D.C. 20005 Attorney Amicus Curiae-Appellee The Chamber of Commerce of the United States of America
Bruce J. Ennis Jenner & Block 601 13th Street, N.W. 12th Floor Washington, D.C. 20005 Attorney for Amicus Curiae-Appellee, Internet Education Foundation
Carl A. Solano Theresa E. Loscalzo Jennifer Dufault James Joseph T. Lukens Dionna K. Litvin Schnader Harrison Segal & Lewis LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Attorneys for Amicus Curiae-Appellees American Society of Journalists and Authors, et al.
OPINION OF THE COURT
GARTH, Circuit Judge:
This case comes before us on vacatur and remand from the Supreme Court’s decision in Ashcroft v. ACLU, 535 U.S. 564, 122 S. Ct. 1700 (2002), in which the Court held that our decision affirming the District Court’s grant of a preliminary injunction against the enforcement of the Child Online Protection Act (“COPA”)1 could not be sustained because “COPA’s reliance on community standards to identify ‘material that is harmful to minors’ does not by itself render the statute substantially overbroad for purposes of the First Amendment.” Id. at 1713 (emphasis in original). Pursuant to the Supreme Court’s instructions in Ashcroft, we have revisited the question of COPA’s constitutionality in light of the concerns expressed by the Supreme Court.
Our present review of the District Court’s decision and the analysis on which that decision was based does not change the result that we originally had reached, albeit on a ground neither decided nor discussed by the District Court. See ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000) (“Reno III”), vacated and remanded, 122 S. Ct. 1700 (2002). We had affirmed the District Court’s judgment granting the plaintiffs a preliminary injunction against the enforcement of COPA because we had determined that COPA’s reliance on “community standards” to identify material “harmful to minors” could not meet the exacting standards of the First Amendment. On remand from the Supreme Court, with that Court’s instruction to consider the other aspects of the District Court’s analysis, we once again will affirm.
COPA,
A.
In Reno I, the Supreme Court analyzed the CDA, which prohibited any person from posting material on the Internet that would be considered either indecent or obscene. See Reno I, 521 U.S. at 859. Like COPA, the CDA provided two affirmative defenses to prosecution: (1) the use of a credit card or other age verification system, and (2) any good faith effort to restrict access by minors. See id. at 860.
The Court, in a 7-2 decision, and speaking through Justice Stevens, held that the CDA violated many different facets of the First Amendment. The Court held that the use of the term “indecent,” without definition, to describe prohibited content was too vague to withstand constitutional scrutiny.2 Justice Stevens further determined that “[u]nlike the regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial entities . . . . [Rather, i]ts open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers.” Id. at 877.3
In holding that “the breadth of the CDA’s coverage is wholly unprecedented,” the Court continued by noting 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.
The Court also discussed the constitutional propriety of the credit card/age verification defenses authorized by the CDA. Utilizing the District Court’s findings, the Court held that such defenses would not be feasible for most noncommercial Web publishers, and that even with respect to commercial publishers, the technology had yet to be proven effective in shielding minors from harmful material. See id. at 881. As a result, the Court determined that the CDA was not narrowly tailored to the Government’s purported interest, and “lacks the precision that the First Amendment requires when a statute regulates the content of speech.” Id. at 874.
COPA, by contrast, represents an attempt by Congress, having been informed by the concerns expressed by the Supreme Court in Reno I, to cure the problems identified by the Court when it had invalidated the CDA. Thus, COPA is somewhat narrower in scope than the CDA. COPA provides for civil and criminal penalties for an individual who, or entity that,
knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors.
Unfortunately, the recited standard for liability in COPA still contains a number of provisions that are constitutionally infirm. True, COPA, in an effort to circumvent the fate of the CDA, expressly defines most of these key terms. For instance, the phrase “by means of the World Wide Web” is defined as the “placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol.” Id. § 231(e)(1).4 As a
result, and as is detailed below, COPA does not target all of the other methods of online communication, such as e-mail, newsgroups, etc. that make up what is colloquially known as the “Internet.” See ACLU v. Reno, 31 F. Supp. 2d 473, 482-83 (Finding of Fact ¶ 7) (E.D. Pa. 1999) (“Reno II”).
1.
Further, only “commercial” publishers of content on the World Wide Web can be found liable under COPA. The statute defines “commercial purposes” as those individuals or entities that are “engaged in the business of making such communications.”
who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person’s trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person’s sole or principal business or source of income).
Id. § 231(e)(2)(B) (emphasis added). Individuals or entities therefore can be found liable under COPA if they seek to make a profit from publishing material on the World Wide Web — thus, individuals who place such material on the World Wide Web solely as a hobby, or for fun, or for other than commercial profiteering are not in danger of either criminal or civil liability.
2.
Furthermore, and of greater importance, is the manner in which the statute defines the content of prohibited material;
In particular, whether material published on the World Wide Web is “harmful to minors” is governed by a three-part test, each prong of which must be satisfied before one can be found liable under COPA:
- (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
- (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd
exhibition of the genitals or post-pubescent female breast; and
- (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
This definition follows a formulation similar to that which the Supreme Court articulated in Miller. Importantly, however, whereas Miller applied such standards as related to the average adult, the “harmful to minors” test applies them with respect to minors.7
COPA, as earlier noted, also provides a putative defendant with affirmative defenses. If an individual or entity “has restricted access by minors to material that is harmful to minors” through the use of a “credit card, debit account, adult access code, or adult personal identification number . . . a digital certificate that verifies age . . . or by any other reasonable measures that are feasible under available technology,” the individual will not be liable if a minor should access this restricted material. Id. § 231(c)(1). The defense also applies if an individual or entity attempts “in good faith to implement a defense” listed above. Id. § 231(c)(2).
C.
On October 22, 1998, the day after President Clinton signed COPA into law, the
The District Court granted the plaintiffs’ motion for a preliminary injunction against the enforcement of COPA on the grounds that COPA is likely to be found unconstitutional on its face for violating the First Amendment rights of adults. Reno II, 31 F. Supp. 2d at 495.8 In so doing, the District Court applied the familiar four-part test in connection with the issuance of a preliminary injunction. See Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999) (explaining that a preliminary injunction is appropriate where the movant can show (1) a likelihood of success on the merits; (2) irreparable harm without the injunction; (3) a balance of harms in the movant’s favor; and (4) the injunction is in the public interest).
In evaluating the likelihood of the plaintiffs’ success, the District Court first determined that COPA, as a content-based restriction on protected speech (in this case, non-obscene sexual expression), violated the strict scrutiny test. More specifically, it found that although COPA addressed a compelling governmental interest in protecting minors from harmful material online, it was not narrowly tailored to
serve that interest, nor did it provide the least restrictive means of advancing that interest. See Reno II, 31 F. Supp. 2d at 493 (citing Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)).
The District Court then addressed the remaining prongs of the preliminary injunction standard, concluding that a failure to enjoin enforcement of COPA would result in irreparable harm, that the balance of harms favored the plaintiffs because the Government does not have “an interеst in the enforcement of an unconstitutional law,” and that the public interest was “not served by the enforcement of an unconstitutional law. Indeed, [held the District Court,] . . . the interest of the public is served by preservation of the status quo until such time that this Court may ultimately rule on the merits of plaintiffs’ claims at trial.” Reno II, 31 F. Supp. 2d at 498.
D.
We affirmed the District Court’s holding, but on different grounds.9 See Reno III. We held that the reference to “community standards” in the definition of “material that is harmful to minors” resulted in an overbroad statute. Because the Internet cannot, through modern technology, be restricted geographically, we held that the “community standards” language subjected Internet providers in even the most tolerant communities to the decency standards of the most puritanical.
As a result, we held that even if we were to assign a narrow meaning to the language of the statute or even if we would sever or delete a portion of the statute that is unconstitutional, we could not remedy the overbreadth problems created by the community standards language.
Hence, we affirmed the District Court’s preliminary injunction. See id. at 179-81.
E.
The Supreme Court vacated our judgment and remanded the case for further proceedings. The majority opinion, consisting of Parts I, II, and IV of the principal opinion authored by Justice Thomas, was joined by Chief Justice Rehnquist and Justices O’Connor, Scalia, and Breyer. It addressed the “narrow question whether the Child Online Protection Act’s . . . use of ‘community standards’ to identify ‘material that is harmful to minors’ violates the First Amendment.” Ashcroft, 122 S. Ct. at 1703.
After reviewing its decision in Reno I and the two prior decisions in this case, the Supreme Court referred to the “contemporary community standards” language from Miller, as representative of the primary concern in evaluating restrictions on speech: “to be certain that . . . [material] will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person — or indeed a totally insensitive one.” Miller, 413 U.S. at 33.
As a result, the Court merely held “that COPA’s reliance on community standards to identify ‘material that is harmful to minors’ does not by itself render the statute substantially overbroad for purposes of the First Amendment.” Ashcroft, 122 S. Ct. at 1713 (emphasis in original). The Court was careful, however, not to “express any view as to whether . . . the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely will not survive strict scrutiny analysis once adjudication of the case is completed below.” Id. at 1713-14. The Court did not vacate the District Court’s preliminary injunction. Id.
In addition to the limited Opinion of the Court, the Ashcroft Court issued a number of other opinions authored and joined by other Justices, each of which is instructive to us on remand.
For example, Part III-B of Justice Thomas’ opinion was joined only by Chief Justice Rehnquist and Justices
O’Connor and Scalia. That portion of Justice Thomas’ opinion explained that we relied too heavily on the Reno I Court’s criticism that “the ‘community standards’ criterion [in the CDA] as applied to the Internet
Moreover, Parts III-A, III-C, and III-D of Justice Thomas’ opinion were joined only by Chief Justice Rehnquist and Justice Scalia. Those Parts explained that the consideration of community standards was not invalid simply because providers of material on the Internet are unable to limit the availability of their speech on a geographic basis. He instead pointed out that jurors in different communities are likely to apply their own sensibilities to any consideration of community standards, even national ones. Justice Thomas then concluded that no meaningful distinction existed between the instant case and prior Supreme Court decisions upholding the use of a community standards test with respect to speech transmitted by phone or mail, see Sable (phone); Hamling v. United States, 418 U.S. 87 (1974) (mail), stating that speakers bear the burden of determining their audience, and that those who find themselves disadvantaged by the fact that Internet communications cannot be limited geographically can simply choose a different, more controllable, medium for their communication. See Ashcroft, 122 S. Ct. at 1711-12 (opinion of Thomas, J.).
Justice O’Connor filed an opinion concurring in part and in the judgment. Although she agreed that COPA is not overbroad solely because of its reliance on community standards, she acknowledged the possibility that “the use of local community standards will cause problems for regulation of obscenity on the Internet . . . in future cases.” Id. at 1714 (O’Connor, J., concurring). She also disagreed
with Justice Thomas’ argument in Parts III-C and III-D that the Internet may be treated the same as telephone or mail communications: “[G]iven Internet speakers’ inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech . . . may be entirely too much to ask.” Id. As a result, Justice O’Connor advocated the adoption of a national standard for regulating Internet obscenity. She noted that Supreme Court precedents do not forbid such a result, and argued that such a standard would be no more difficult or unrealistic to implement than the standard created for the entire state of California in Miller. Id. at 1715.
Justice Breyer filed an opinion concurring in part and in the judgment in which he argued that “Congress intended the statutory word ‘community’ to refer to the Nation’s adult community taken as a whole.” Id. at 1716 (Breyer, J., concurring). This standard would serve the purpose, argued Justice Breyer, of avoiding the difficult question of constitutionality under the First Amendment while experiencing no more “regional variation” than is “inherent in a system that draws jurors from a local geographic area.” Id. at 1716.
Justice Kennedy filed an opinion concurring in the judgment, in which he was joined by Justices Souter and Ginsburg. Although Justice Kennedy agreed with us that a community standards factor when applied to the Internet is a greater burden on speech than when applied to the mails or to telephones, he did not agree that the extent of that burden could be ascertained
Finally, Justice Stevens authored a dissenting opinion, in which he reiterated our concerns expressed in Reno III that
COPA’s community standards factor was itself sufficient to render the statute constitutionally overbroad because communication on the Internet (unlike that through the mails or telephones) may not be restricted geographically. This fact, Justice Stevens claimed, was sufficient to invalidate COPA, particularly in light of the fact that many of the “limiting provisions” (i.e., the prurient interest, the patently offensive and the serious value prongs of the statute) mentioned by Justices Thomas and Kennedy apply only to minors, thereby burdening protected material which should be available to adults. See id. at 1726-27 (Stevens, J., dissenting).
Accordingly, on remand, we must again review the District Court’s grant of a preliminary injunction in favor of the plaintiffs. This time, however, we must do so in light of the Supreme Court’s mandate that the community standards language is not by itself a sufficient ground for holding COPA constitutionally overbroad. This direction requires an independent analysis of the issues addressed by the District Court in its original opinion. To assist us in this task, we asked the parties for additional submissions addressed to the opinion of the Supreme Court and to authorities filed subsequent to that opinion and since we last addressed COPA in Reno III.
II.
As mentioned above, in order to grant a motion for a preliminary injunction, a district court must address the following four factors:
- whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest.
Allegheny Energy, 171 F.3d at 158 (citing ACLU v. Black Horse Pike Reg‘l Bd. of Educ., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996) (en banc)). We review the District Court’s grant of a preliminary injunction in favor of the ACLU to determine “whether the court abused its discretion, committed an obvious error in applying the law, or made a clear mistake in considering the proof.” In re Assets of Martin, 1 F.3d 1351, 1357 (3d Cir. 1993) (citing Philadelphia Marine Trade Ass‘n v. Local 1291, 909 F.2d 754, 756 (3d Cir. 1990), cert. denied, 498 U.S. 1083 (1991)).10
The most significant and, indeed, the dispositive prong of the preliminary injunction analysis in the instant appeal is whether the plaintiffs bore their burden of
We hold that the District Court did not abuse its discretion in granting the preliminary injunction, nor did it err in ruling that the plaintiffs had a probability of prevailing on the merits of their claim inasmuch as
A. Strict Scrutiny
We turn first, however, to the question of whether
1. Compelling Interest
The Supreme Court has held that “there is a compelling interest in protecting the physical and psychological well-being of minors.” Id. (citing Ginsberg, 390 U.S. at 639-40). The parties agree that the Government’s stated interest in protecting minors from harmful material online is compelling. This being so, we proceed to the next question of whether
2. Narrowly Tailored
We hold that the following provisions of
In our earlier opinion in this case, we made clear that “Web publishers would most assuredly suffer irreparable harm” under
(a) “Material Harmful to Minors”
We address first the provision defining
As discussed in our initial opinion on the matter, when contemporary community standards are applied to the Internet, which does not permit speakers or exhibitors to limit their speech or exhibits geographically, the statute effectively limits the range of permissible material under the statute to that which is deemed acceptable only by the most puritanical communities. This limitation by definition burdens speech otherwise protected under the
This burden becomes even more troublesоme when those evaluating questionable material consider it “as a whole” in judging its appeal to minors’ prurient interests. As Justice Kennedy suggested in his concurring opinion, it is “essential to answer the vexing question of what it means to evaluate Internet material ‘as a whole,’ when everything on the Web is connected to everything else.” Ashcroft, 122 S. Ct. at 1721 (internal citation omitted). We agree with Justice Kennedy’s suggestion, and consider this issue here.
While
The taken “as a whole” language is crucial because the
[It is] an essential First Amendment rule [that t]he artistic merit of a work
does not depend on the presence of a single explicit scene. . . . Under Miller, the First Amendment requires that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive.
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 1401 (2002) (citation omitted).
Yet, here the plain meaning of
By limiting the matеrial to individual expressions, rather than to an expanded context, we would be hard-pressed to hold that
Because we view such a statute, construed as its own text unquestionably requires, as pertaining only to single individual exhibits,
Lastly,
The statute does not limit the term minor in any way, and indeed, in its briefing, the Government, in complete disregard of the text, contends that minor means a “normal, older adolescent.” Orig. Gov’t Br. at 32; Gov’t Br. on Remand at 27-28; Gov’t Reply Br. on Remand at 4-5.
We need not suggest how the statute’s targeted population could be more narrowly defined, because even the Government does not argue, as it could not, that materials that have “serious literary, artistic, political or scientific value” for a sixteen-year-old would have the same value for a
The term “minor,” as Congress has drafted it, thus applies in a literal sense to an infant, a five-year old, or a person just shy of age seventeen. In abiding by this definition, Web publishers who seek to determine whether their Web sites will run afoul of
The Government has argued that “minors” should be read to apply only to normal, older adolescents. We realize as a pragmatic matter that some pre-adolescent minors may, by definition, be incapable of possessing a prurient interest. It is not clear, however, that the Government’s proffered definition meets Congress’s intended meaning for the term “minor” with respect to the “patently offensive” and “serious value” prongs. Furthermore, Congress has identified as objects of its concern children who cannot be described as “older” adolescents:
Moreover, because of sophisticated, yet easy to use navigating software, minors who can read and type are capable of conducting Web searches as easily as operating a television remote. While a four-year old may not be as capable as a thirteen year old, given the right tools (e.g., a child trackball and browser software) each has the ability to ‘surf ’ the Net and will likely be exposed to harmful material.
Because the plain meaning of the statute’s text is evident, we decline to rewrite Congress’s definition of “minor.”16
We
It does seem logical that if Pope requires a reasonable person standard for the “serious value” prong of the Miller test, then an analogous “serious value for minors” prong of a “harmful to minors” test would look to the value for a “reasonable minor.” It does not follow, however, that the “reasonable minor” must be judged by reference to minors at the upper end of the spectrum of ages encompassed in the term “minor,” unless the statute is drawn in that particular manner. We are not persuaded that
The Fourth Circuit’s opinion in American Booksellers Ass‘n v. Virginia, 882 F.2d 125 (4th Cir. 1989), cert. denied, 494 U.S. 1056 (1990), is likewise inapplicable. That case dealt with the interpretation of a Virginia statute prohibiting the display of sexually explicit materials to “juveniles [less than eighteеn years of age].” Id. at 127 (citing
The Fourth Circuit has recently certified to the Virginia Supreme Court two questions relating to the scope of a 1999 amendment to the Virginia statute at issue in American Booksellers Ass‘n v. Virginia. See PSINet, Inc. v. Chapman, 317 F.3d 413 (4th Cir. 2003) (citing
We do not suggest how Congress could have tailored its statute — that is not our function. We do no more than conclude that the use of the term “minors” in all three prongs of the statute’s definition of “material harmful to minors” is not narrowly drawn to achieve the statute’s purpose — it is not defended by the Government in the exact terms of the statute, and does not lend itself to a commonsense meaning when consideration is given to the fact that minors range in age from infants to seventeen years. Therefore, even if we were to accept the narrowing construction that the Government proposes — and we do not —
The statute includes within “commercial purposes” any Web publisher who meets
Based on this broad definition of “engaged in the business,” we read
Moreover, the definition of “commercial purposes” further expands
Contrary to our reading and understanding of
We do not find the Government’s argument persuasive.
In sum, while the “commercial purposes” limitation makes the reach of
(c) Affirmative Defenses
The Government argues that
It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors — (A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;
(B) by accepting a digital certificate that verifies age; or
(C) by any other reasonable measures that are feasible under available technology.
The District Court held that
Evidence presented to this Court is likely to establish at trial that the implementation of credit card or adult verification screens in front of material that is harmful to minors may deter users from accessing such materials and that the loss of users of such material may affect the speakers’ economic ability to provide such communications. The plaintiffs are likely to establish at trial that under
COPA , Web site operators and content providers may feel an economic disincentive to engage in communications that are or may be considered to be harmful to minors and thus, may self-censor the content of their sites. Further, the uncontroverted evidence showed that there is no way to restrict the access of minors to harmful materials in chat rooms and discussion groups, which the plaintiffs assert draw traffic to their sites, without screening all users before accessing any 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. I conclude that based on the evidence presented to date, the plaintiffs have established a substantial likelihood that they will be able to show thatCOPA imposes a burden on speech that is protected for adults.
Reno II, 31 F. Supp. 2d at 495 (citations omitted).
The Government maintains that the District Court overstated the burdens on protected speech created by utilization of
First, the actual effect on users as a result of
We agree with the District Court’s determination that
The Supreme Court has disapproved of content-based restrictions that require recipients to identify themselves affirmatively before being granted access to disfavored speech, because such restrictions can have an impermissible chilling effect on those would-be recipients.22
Lastly, none of the display-restriction cases relied on by the Government are apposite here, as each involved the use of blinder racks to shield minors from viewing harmful material on display. Orig. Gov’t Br. at 43-44; Gov’t Br. on Remand at 44-45; Gov’t Reply Br. on Remand at 13-14.23
The use of “blinder racks,” or some analogous device, does not create the same deterrent effect on adults as would
The effect of the affirmative defenses, as they burden “material harmful to minors” which is constitutionally protected for adults, is to drive this protected speech from the marketplace of ideas on the Internet. This type of regulation is prohibited under the
3. Least Restrictive Means
As we have just explained,
The Supreme Court has stated that “[i]f a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.” United States v. Playboy Entertainment Group, 529 U.S. 803, 813 (2000); see also Reno I, 521 U.S. at 874 (“[The
The District Court determined, based on its findings of fact, that
We first examine the alternative of blocking and filtering technology. The District Court described this teсhnology as follows:
[B]locking or filtering software may be used to block Web sites and other content on the Internet that is inappropriate for minors. Such technology may be downloaded and installed on a user’s home computer at a price of approximately $40.00. Alternatively, it may operate on the user’s ISP [(Internet Service Provider)]. Blocking technology can be used to block access by minors to whole sites or pages within a site.
Id. at 492 (Finding of Fact ¶ 65).24 The District Court concluded that blocking and
The Government, however, argues that filtering software is not a viable means of protecting children from harmful material online because it is not nearly as effective as
The Government makes much of the notion that the voluntary use of blocking and filtering software places an onus on parents. Id. (noting “the concern that the expense of purchasing and updating such software programs might ‘discourage adults or schools from using them.‘“) (quoting
But the Supreme Court has effectively answered this contention. The Court stated in Playboy, “A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.” Playboy, 529 U.S. at 805. The Playboy Court held unconstitutional a federal statutory provision that required cable operators who provide channels primarily dedicated to sexually-oriented programming to scramble or block those channels completely, or to “time channel” their transmission, i.e., limit their availability to hours between 10 p.m. and 6 a.m., when, in Congress‘s view, children are unlikely to be viewing television. By this provision Congress sought to prevent children‘s exposure to content contained on such channels as a result of “signal bleed.”26
The Court determined that this provision constituted a “significant restriction of
Congress had provided for an “opt-out” provision whereby a cable subscriber could request the cable company to scramble fully or block completely the receipt of sexually explicit channels. The Court explained that the voluntary nature of the “opt-out” provision rendered it less restrictive: “It is no response that voluntary blocking requires a consumer tо take action, or may be inconvenient, or may not go perfectly every time.” Id. at 824. Instead, the Court explained that reliance upon “informed and empowered parents,” id. at 825, was the preferable alternative:
The regulatory alternative of a publicized [“opt-out” provision], which has . . . the choice of an effective blocking system, would provide parents the information needed to engage in active supervision. The government has not shown that this alternative, a regime of added communication and support, would be insufficient to secure its objective, or that any overriding harm justifies its intervention.
In Fabulous Associates Inc. v. Pennsylvania Public Utility Commission, 896 F.2d 780 (3d Cir. 1990), we had held unconstitutional a Pennsylvania law that required adults to obtain nine-digit access codes in order to listen to dial-a-porn messages on their telephones. We held that the statute was not the least restrictive means of achieving the state‘s interest in protecting minors from such messages because it required a loss of anonymity on the part of adults. Although we recognized that pre-blocking would not protect minors in homes where adult residents had unblocked the lines, we held that the “responsibility for making such choices [between individually accessing such speech and protecting minor dependents from that speech] is where our society has traditionally placed it — on the shoulders of the parent.” Id. at 788 (citing Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 73-74 (1983)).
As with the “opt-out” alternative available in Playboy, which would allow parents to block sexually-oriented cable channels effectively, and as with the pre-blocking alternative described in Fabulous Associates, here filtering software is a less restrictive alternative that can allow parents some measure of control over their children‘s access to speech that parents consider inappropriate.27
The Government also argues that the blocking and filtering software is not as effective as COPA in that it is both over- and underinclusive. To be sure, blocking and filtering software may sometimes block too little and sometimes block too much Internet speech. As the District Court found, blocking and filtering technology is not perfect in thаt “some Web sites that may be deemed inappropriate for minors may not be blocked while some Web sites that are not inappropriate for minors may be blocked.” Reno II, 31 F. Supp. 2d at 492 (Finding of Fact ¶ 66). The District Court found, however, that no evidence had been presented “as to the percentage of time that blocking and filtering technology is over- or underinclusive.” Id. Moreover, the District Court, as noted
For further discussion of COPA‘s overinclusiveness, see our discussion of overbreadth, infra.
A three-judge court has recently held that a federal law requiring the use of filtering and blocking software on computers at libraries that received federal funding violates the First Amendment. See American Library Ass‘n v. United States, 201 F. Supp. 2d 401, 406 (E.D. Pa.) (three-judge court), prob. juris. noted, 123 S. Ct. 551 (2002). This decision does not compel a different result here. In that case, the American Library court noted that blocking and filtering technology overblocks and underblocks Internet content.29 That decision, however, is distinguishable because, whereas the Act at issue in American Library involved Government-mandated use of blocking and filtering software, here we only consider the voluntary use of such software by parents who have chosen to use this means to protect their children. We also note that, in American Library, the Government sought to defend the legislation at issue by reference to the statute‘s “disabling provision,” which required adults to identify themselves to librarians in order to disable the filtering software on library computers, and thus gain unfettered access to the wide range of speech on the Internet. The court held that this “disabling provision” created a chilling effect on adult library patrons’ access to protected speech,30 just as we
In addition, we recognize that a report approved by the governing board of the National Research Council, by a committee chaired by the Honorable Dick Thornburgh, four years after COPA was enacted (2002), similarly concluded that:
Filters are caрable of blocking inappropriate sexually explicit material at a high level of effectiveness — if a high rate of overblocking is also acceptable. Thus, filters are a reasonable choice for risk-averse parents or custodians (e.g., teachers) who place a very high priority on preventing exposure to such material and who are willing to accept the consequences of such overblocking.
COMMITTEE TO STUDY TOOLS AND STRATEGIES FOR PROTECTING KIDS FROM PORNOGRAPHY, NATIONAL RESEARCH COUNCIL, YOUTH, PORNOGRAPHY AND THE INTERNET § 12.1.8 (Dick Thornburgh & Herbert S. Lin eds., 2002), available at http://www.nap.edu/html/youth_internet/ (last visited Feb. 6, 2003).
have determined that COPA‘s affirmative defenses, by requiring the use of a credit card or
We agree with the District Court that the various blocking and filtering techniques which that Court discussed may be substantially less restrictive than COPA in achieving COPA‘s objective of preventing a minor‘s access to harmful material. We are influenced further in this conclusion by our reading of the Report of the House Committee on Commerce, which had advocated the enactment of COPA. See
Because the techniques and/or alternatives considered by the Committee (i.e., “tagging,” “domain name zoning,” etc.), see
The existence of less restrictive alternatives renders COPA unconstitutional under strict scrutiny. As the Supreme Court has said:
“Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties . . . and the benefit gained must outweigh the loss of constitutionally protected rights.
Elrod v. Burns, 427 U.S. 347, 363 (1976) (quoting Kusper v. Pontickes, 414 U.S. 51, 59 (1973)).
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In sum, the District Court did not abuse its discretion in granting the plaintiffs a preliminary injunction on the grounds that COPA, in failing to satisfy strict scrutiny, had no probability of success on the merits. COPA is clearly a content-based restriction on speech. Although it does purport to serve a compelling governmental interest, it is not narrowly tailored, and thus fails strict scrutiny. COPA also fails strict scrutiny because it does not use the least restrictive means to achieve its ends.
B. Overbreadth
Though the Supreme Court held in Ashcroft that COPA‘s reliance on community standards did not alone render the statute overbroad, the Court specifically declined to “express any view as to whether COPA suffers from substantial overbreadth for other reasons [or] whether the statute is unconstitutionally vague,” instead explaining that “prudence dictates allowing the Court of Appeals to first examine these difficult issues.” Ashcroft, 122 S. Ct. at 1713. In this Part, therefore, we discuss whether COPA is substantially overbroad, and hold that it is.32
In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the Supreme Court ruled that a statute that burdens otherwise protected speech is facially invalid if that burden is not only real, but “substantial as well, judged in relation to the statute‘s plainly legitimate sweep.” Id. at 615. As the Court has recently stated, “The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Free Speech Coalition, 122 S. Ct. at 1404.33
Our analysis of whether COPA is overbroad is akin to the portion of the strict scrutiny analysis we have conducted in which we concluded that COPA is not narrowly tailored. Overbreadth analysis — like the question whether a statute is narrowly tailored to serve a compelling governmental interest — examines whether a statute encroaches upon speech in a constitutionally overinclusive manner.
We conclude that the statute is substantially overbroad in that it places significant burdens on Web publishers’ communication of speech that is constitutionally protected as to adults and adults’ ability to access such speech. In so doing, COPA encroaches upon a significant
1. “Material Harmful to Minors”
First, COPA‘s definition of “material harmful to minors” impermissibly places at risk a wide spectrum of speech that is constitutionally protected. As we have discussed in our strict scrutiny analysis, two of the three prongs of the “harmful to minors” test — the “serious value” and “prurient interest” prongs — contain requirements that material be “taken as a whole.” See
An examination of the claims of certain amici curiae that COPA threatens their speech illustrates this problem. For example, amicus California Museum of Photography/University of California at Riverside, maintains a Web site that, among other things, displays artwork from the museum‘s collection. The Web site contains a page that introduces the “photographers” section of the Web site. See California Museum of Photography/University of California at Riverside, UCR/CMP Photographers, at http://www.cmp.ucr.edu/photos/photographers.html (last visited Feb. 6, 2003).34 This Web page contains several photographs, each which serves as a link to that museum‘s on-line exhibit on a particular photographer. One of these photographs on the introductory page, by Lucien Clergue, links to the museum‘s exhibit of his work. This photograph is of a naked woman whose “post-pubescent female breast,”
Viewing this photograph “as a whole,” but without reference to the surrounding context, as per COPA‘s definition of “material,” the photograph arguably meets the definition of “harmful to minors.” Yet, this same photograph, when treated in context as a component of the entire Web page, cannot be said to be “harmful to minors.” In the context of the Web page, which displays several art exhibits, none of which are even arguably “harmful to minors,” the Clergue photograph and its surroundings would have “serious [artistic] value.” Of course, it would also be protected speech as to adults.35
As these examples illustrate — and they are but a few of the very many produced by the plaintiffs and the amici — the burden that COPA would impose on harmless material accompanying such single images causes COPA to be substantially overinclusive.
2. “Minor”
As we have earlier explained, the term “minor” appears in all three prongs of the statute‘s modified-for-minors Miller test. COPA‘s definition of a “minor” as any person under the age of seventeen serves to place at risk too wide a range of speech that is protected for adults. The type of material that might be considered harmful to a younger minor is vastly different — and encompasses a much greater universe of speech — than material that is harmful to a minor just shy of seventeen years old.
Thus, for example, sex education materials may have “serious value” for, and not be “patently offensive” as to, sixteen-year-olds. The same material, however, might well be considered “patently offensive” as to, and without “serious value” for, children aged, say, ten to thirteen, and thus meet COPA‘s standard for material harmful to minors. Because COPA‘s definition of “minor” therefore broadens the reach of “material that is harmful to minors” under the statute to encompass a vast array of speech that is clearly protected for adults — and indeed, may not be obscene as to older minors — the definition renders COPA significantly overinclusive.37
COPA‘s purported limitation of liability to persons making communications “for commercial purposes” does not narrow the sweep of COPA sufficiently. Instead, the definition subjects too wide a range of Web publishers to potential liability. As we have explained, under the plain language of COPA, a Web publisher will be subjected to liability due to the fact that even a small part of his or her Web site has material “harmful to minors.” Furthermore, because the statute does not require that a Web publisher seek profit as a sole or primary objective, COPA can reach otherwise non-commercial Web sites that obtain revenue through advertising. We have explored this subject in greater detail in the strict scrutiny section of this opinion. The conclusion we reach there is every bit as relevant here.
4. Affirmative Defenses
The affirmative defenses do not save the statute from sweeping too broadly. First, the affirmative defenses, if employed by Web publishers, will result in a chilling effect upon adults who seek to view, and have a right to access, constitutionally protected speech. Compliance with COPA‘s affirmative defenses requires that Web publishers place obstacles in the way of adults seeking to obtain material that may be considered harmful to minors under the statute. As the District Court found, these barriers, which would require adults to identify themselves as a precondition to accessing disfavored speech, are likely to deter many adults from accessing that speech.
Second, the affirmative defenses impose a burden on Web publishers, and as such, do not alleviate the chilling effect that COPA has on their speech. Web publishers will be forced to take into account the chilling effect that COPA‘s affirmative defenses have on adult Web users. Consequently, COPA will cause Web publishers to recoil from engaging in such expression at all, rather than availing themselves of the affirmative defenses. Additionally, the financial costs of implementing the barriers necessary for compliance with COPA may further deter some Web publishers from posting protected speech on their Web sites.
Moreover, because thе affirmative defenses are not included as elements of the
Thus, the affirmative defenses do not cure nor diminish the broad sweep of COPA sufficiently.
5. “Community Standards”
As the Supreme Court has now explained, community standards by itself did not suffice to render COPA substantially overbroad. Justice Kennedy‘s concurring opinion, however, explained that community standards, in conjunction with other provisions of the statute, might render the statute substantially overbroad. See Ashcroft, 122 S. Ct. at 1720 (Kennedy, J., concurring) (“We cannot know whether variation in community standards renders the Act substantially overbroad without first assessing the extent of the speech covered and the variations in community standards with respect to that speech.“).
As we have just discussed earlier, the expansive definitions of “material harmful to minors” and “for commercial purposes,” as well as the burdensome affirmative defenses, likely render the statute substantially overbroad. COPA‘s application of “community standards” exacerbates these constitutional problems in that it further widens the spectrum of protected speech that COPA affects. As we said in our original decision, “COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state‘s community standards in order to avoid criminal liability.” Reno III, 217 F.3d at 166; see also Ashcroft, 122 S. Ct. at 1719 (Kennedy, J., concurring) (“if an eavesdropper in a more traditional, rural community chooses to listen in, there is nothing the publisher can do. As a practical matter, COPA makes the eavesdropper the arbiter of propriety on the Web.“).
The “community standards” requirement, when viewed in conjunction with the other provisions of the statute — the “material harmful to minors” provision and the “commercial purposes” provisions, as well as the affirmative defenses — adds to the already wide range of speech swept in by COPA. Because the community standards inquiry further broadens the scope of speech covered by the statute, the limitations that COPA purports to place оn its own reach are that much more ineffective.
6. Unavailability of Narrowing Construction
Before concluding that a statute is overbroad, we are required to assess whether it is subject to “a narrowing construction that would make it constitutional.” Virginia v. American Booksellers’ Ass‘n, 484 U.S. 383, 397 (1988). We may impose such a narrowing construction, however, “only if it is readily susceptible to such a construction,” Reno I, 521 U.S. at 884, because courts “will not rewrite a . . . law to conform it to constitutional requirements.” American Booksellers, 484 U.S. at 397. As the Supreme Court once noted, “It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.” United States v. Reese, 92 U.S. 214, 221 (1875).
We originally declined to redraw COPA when we held that the “contemporary community standards” rendered the statute overbroad; we certainly decline to perform even more radical surgery here. In order
* * *
Accordingly, we hold that the plaintiffs will more probably prove at trial that COPA is substantially overbroad, and therefore, we will affirm the District Court on this independent ground as well.
III.
This appeal concerns the issuance of a preliminary injunction pending the resolution of the merits of the case. Because the ACLU will likely succeed on the merits in establishing that COPA is unconstitutional because it fails strict scrutiny and is overbroad, we will affirm the issuance of a preliminary injunction.
APPENDIX A
CHILD ONLINE PROTECTION ACT
47 U.S.C. § 231
Restriction of access by minors to materials commercially distributed by means of world wide web that are harmful to minors
(a) Requirement to restrict access
(1) Prohibited conduct
Whoever knowingly and with knowledge of the character of the materiаl, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.
(2) Intentional violations
In addition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
(3) Civil penalty
In addition to the penalties under paragraphs (1) and (2), whoever violates paragraph (1) shall be subject to a civil penalty of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
(b) Inapplicability of carriers and other service providers
For purposes of subsection (a), a person shall not be considered to make any communication for commercial purposes to the extent that such person is—
(1) a telecommunications carrier engaged in the provision of a telecommunications service;
(2) a person engaged in the business of providing an Internet access service;
(3) a person engaged in the business of providing an Internet information location tool; or
(4) similarly engaged in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration
(c) Affirmative defense
(1) Defense
It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors —
(A) by requiring use of a сredit 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.
(2) Protection for use of defenses
No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense authorized under this subsection or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section.
(d) Privacy protection requirements
(1) Disclosure of information limited
A person making a communication described in subsection (a)—
(A) shall not disclose any information collected for the purposes of restricting access to such communications to individuals 17 years of age or older without the prior written or electronic consent of—
(i) the individual concerned, if the individual is an adult; or
(ii) the individual‘s parent or guardian, if the individual is under 17 years of age; and
(B) shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the person making such communication and the recipient of such communication.
(2) Exceptions
A person making a communication described in subsection (a) may disclose such information if the disclosure is—
(A) necessary to make the communication or conduct a legitimate business activity related to making the communication; or
(B) made pursuant to a court order authorizing such disclosure.
(e) Definitions
For purposes of this subsection, the following definitions shall apply:
(1) By means of the world wide web
The term “by means of the World Wide Web” means by placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol.
(2) Commercial purposes; engaged in the business
(A) Commercial purposes
A person shall be considered to make a communication for commercial purposes оnly if such person is engaged
(B) Engaged in the business
The term “engaged in the business” means that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person‘s trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person‘s sole or principal business or source of income). A person may be considered to be engaged in the business of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such material to be posted on the World Wide Web.
(3) Internet
The term “Internet” means the combination of computer facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected world-wide network of computer networks that employ the Transmission Control Protocol/Internet Protocol or any successor protocol to transmit information.
(4) Internet access service
The term “Internet access service” means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a
package of services offered to consumers. Such term does not include telecommunications services.
(5) Internet information location tool
The term “Internet information location tool” means a service that refers or links users to an online location on the World Wide Web. Such term includes directories, indices, references, pointers, and hypertext links.
(6) Material that is harmful to minors
The term “material that is harmful to minors” means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that—
(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
(7) Minor
The term “minor” means any person under 17 years of age.
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit
Notes
In American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990), cert. denied, 500 U.S. 942 (1991), the Eleventh Circuit upheld a Georgia law restricting the display of material “harmful to minors” in light of the fact that the use of blinder racks would satisfy the statute’s requirement. Id. at 1508-09. In analyzing the “harmful to minors” test contained in that statute, the Eleventh Circuit interpreted the Supreme Court’s opinion in Pope v. Illinois, 481 U.S. 497 (1987), to “teach[ ] that if any reasonable minor, including a seventeen-year-old, would find serious value, the material is not ‘harmful to minors.’ ” American Booksellers, 919 F.2d at 1504-05.
We do not think that Pope leads to the conclusions that the Eleventh Circuit drew. In Pope, the Court explained that, under the “serious value” prong of the Miller test for obscenity, “The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.” Pope, 481 U.S. at 500-01 (emphasis added).
In general, blocking or filtering software programs work in conjunction with Internet browsers such as Netscape Navigator and Microsoft’s Internet Explorer, and are either installed directly onto individual computers or onto a host server used with a network of computers. Blocking or filtering software could also be installed at the site of the Internet access provider. Software to block access to websites has existed for many years . . . .
In order to block Internet sites, a software vendor identifies categories of material to be restricted and then configures the software to block sites containing those categories of speech. Some software blocking vendors employ individuals who browse the Internet for sites to block, while others use automated searching tools to identify which sites to block. New products are constantly being developed, however, that could improve the effectiveness of the blocking software. For example, at least one product has been designed that is capable of analyzing the content being retrieved by the computer. By analyzing the content, rather than a predefined list of sites, the product is capable of screening inappropriate material from chat rooms, e-mail, attached documents, search engines, and web browsers. Such products will help parents and educators reduce a minor’s exposure to sexually explicit material.
American Library, 201 F. Supp. 2d at 406.Although [blocking and filtering software] programs are somewhat effective in blocking large quantities of pornography, they are blunt instruments that not only “underblock,” i.e., fail to block access to substantial amounts of content that the library boards wish to exclude, but also, central to this litigation, “overblock,” i.e., block access to large quantities of material that library boards do not wish to exclude and that is constitutionally protected.
YOUTH, PORNOGRAPHY AND THE INTERNET, supra note 29, at § 14.6.[T]he problem of protecting children from inappropriate material and experiences on the Internet is complex. . . . The effectiveness of technology — based on tools and social and educational strategies in practice, should be examined and characterized. Chapter 12 [of this Report] discussed one aspect of evaluating the performance of filters, based on a “head-to-head” comparison of how filters performed in blocking inappropriate materials. But protection of children is a holistic enterprise that must account for the totality of their Internet experience — which suggests the need for a examination of all of the tools in all of the venues in which children use the Intеrnet.