PSINet, Inc. v. Chapman

However, properly grant summary judgment court ad- vacate the of the district Plaintiffs on the reasonableness of argument opinion: in its dressed this Paragraph early termination formula their lease two The Roses terminated component of II Count for lack of stand- only month early, months and Miller one ing. early, discounting and the of the month- logically be done at

ly payments would lease, pursuant implicit

the rate in the

Paragraph implicit 18. The rate 5.99%, im- lease was and the rate

Rose Thus, lease was 7.6%.

plicit the Miller PSINET, INCORPORATED; Char Robin just representative as NMAC’s lottesville Health & testified, Sexual Wellness gain Norris to NMAC re- Clinic; Publications, Ltd., Portico sulting from its of not discount- practice Weekly; Publisher of Charlottesville couple “a as to the ing was bucks” Communications, Silverchair Science slight This Rose and Miller leases. Incorporated; Virginia Isp Alliance; overage is de minimis and not enough, Rockbridge Village; American Global Roses, in the cases of Miller and the Booksellers Free Foundation For Ex un- early charge render the termination pression; The And Periodical Book light of the harms to reasonable America, Incorporated; Association Of arising early from the termi- NMAC Foundation; Freedom To Read Sexu 1667b(b). §to pursuant nation Network; Filkins, al Health Chris at *32. NMAC claims 2000 WL 1599244 Institute; Proprietor of the Safer Sex only “couple of bucks” as a gained Ellison; Harlan The Comic Book Le the Plain- discounting result of not because gal Fund; Bright; A Defense Susie remaining payments tiffs’ consisted almost Light Bookstores; Different Lambda entirely of the that had not depreciation Rising Bookstores; Bibliobytes; Peo yet paid. It was the interest or rent been Way, ple For American Plain to a charge component amounted tiffs-Appellees, “couple of bucks.” dispute Plaintiffs do not this. Conse- quently, agree we with the district court’s United States Internet Provider Service the de minimis overage conclusion that Plaintiff, Association,

resulting from NMAC’s failure discount present value does not make the Alter- CHAPMAN, D. Commonwealth Warren Charge native Formula unreasonable un- Attorney; Cambloss, III, L. James 1667b(b). §der Attorney, Defen Commonwealth dants-Appellants.

V. CONCLUSION No. 01-2352. reasons, For all of the above we will grant affirm the district court’s of sum- Appeals, United States Court mary judgment to on their Plaintiffs Count Fourth Circuit. I disclosure claims and on Count IV. We Argued: Oct. grant summary will also affirm the 25, 2004. Decided: March judgment to on the reasonableness NMAC component Alternative Formula However, II. we will reverse and Count

thal, York, York; New New Elliot M. Mincberg, Ottinger, People Lawrence S. Foundation, Way For The American D.C.; O’Neil, Washington, Robert M. J. Wheeler, THE Joshua Thomas Jefferson Ex- Center For The Protection Of Free Charlottesville, pression, Virginia, Ap- for pellees. NIEMEYER, Judge,

Before Circuit SPENCER, R. James United States Judge District for the Eastern District of Virginia, sitting designation, and Andre DAVIS, Judge M. States District United Maryland, sitting by for the District of designation. by published opinion. Judge

Affirmed opinion. Judge wrote the SPENCER a concurring opinion. Judge DAVIS wrote dissenting opinion. NIEMEYER wrote a OPINION SPENCER, Judge: District This matter is before the Court on the appeal Defendants’ District Western Virginia’s grant Summary Judgment At is the favor of the Plaintiffs. issue constitutionality of Va.Code Ann. Section (Michie (amended Supp.1999) 2000), which criminalizes the dissemination of material harmful to minors over Hurd, Henry ARGUED: William State Internet. The District Court found the Solicitor, General, Attorney Office Of The statute invalid under both the First Richmond, Virginia, for Appellants. Amendment and the Commerce Clause. Kirby, Wiley, Fielding, Thomas W. Rein & below, For discussed the Dis- the reasons L.L.P., D.C., Washington, Appellees. summary ruling granting trict Court’s Jerry Kilgore, Attorney BRIEF: ON W. striking down the judgment and statute Virginia, Landry, Alison P. As- General AFFIRMED. General, Attorney sistant Office Of The General, Richmond, Attorney Virginia, for Michie, Smith,

Appellants. Garrett M. Background I. Hamlett, Tweel, Lowry, Rasmussen & P.C., Charlottesville, spectrum of busi- Virginia; represent Michael A. Plaintiffs in- Sonnenschein, nesses, organizations, and Bamberger, membership Nath & Rosen- to commu- The was use Internet1 statute reenacted amended dividuals who to include files or nicate, access to in 1999 electronic mes- display, to seek again sages, and was reenacted as amend- speech. Plaintiffs commu- range of broad present ed in 2000. its and from outside both within nicate online “sell, form makes unlawful to rent or Plain- Virginia, the Commonwealth juvenile” knowingly display loan to a or to both within speech tiffs’ is accessible in a purposes for commercial manner all fear that Virginia. Plaintiffs outside whereby juveniles may pe- examine and speech considered their online could be ruse: juveniles” in communi- “harmful to some 18.2-391,

ties under Code section Any picture, photography, drawing, speech film, fact that their despite the sculpture, picture motion electronic as to protection full constitutional message containing image, receive file or an or the facially challenged representation Plaintiffs image adults. similar visual or constitutionality portion of section 18.2-391 or human person body permanent injunction by granted depicts sexually explicit nudity, were which States Court for the conduct or the United District sexual sadomasochistic abuse enjoining juveniles, and which is harmful Virginia District or Western enforcement of statute. book, Any pamphlet, magazine, 2. reproduced, matter printed however 1970, Virginia prohibited the Since has file message containing electronic or knowing display and mortar” “brick words, recording or sound which con- space, of commercial materials are any tains matter enumerated subdivi- juveniles. Ann. harmful Va.Code subsection, explicit 1 of this sion or (Michie (amended § Supp.1999) 18.2-391 verbal descriptions detailed narrative 2000). 1985,Virginia In amended the stat excitement, accounts of sexual sexual ute, making knowingly it alsо “to unlawful conduct or sadomasochistic abuse and display” these materials “in a manner which, whole, taken as harmful is whereby juveniles may pe examine and juveniles. Acts, them. 1985 Va. ch. 506. Sev ruse” (Michie § Ann. Supp. Va.Code 18.2-391 plaintiffs brought challenging eral suit 1999) (amended 2000) added). (emphasis facially unconstitution 1985 amendment A violation section 18.2-391 is a Class I grounds impermissi- al on the that it was misdemeanor. bly vague violated the First Amend The 2000 Amendment adds the follow- path through ment. After a tortuous ing: courts, eventually upheld the statute was Fourth Circuit in a narrow light person uses services of Internet [I]f

ing construction accorded to the statute provider service or an electronic mail Court of American Virginia. provider pro- acts committing service subsection, F.2d Virginia, Booksellers Ass’n under such hibited In- (4th 125, 126 Cir.1989). provider ternet service or electronic mail (1997); Cyber specifics 1. We do not recite of how here the 138 L.Ed.2d 874 Communications, functions; necessary, Engler, we space, the Internet where Inc. v. (E.D.Mich.1999); F.Supp.2d describe relevant of the Internet features 740-44 Pataki, analysis of this We that the in our case. note American Libraries Ass’n. v. (S.D.N.Y.1997); general F.Supp. contours the Internet have been 164-67 Shea v. Reno, (S.D.N.Y. judicial opinions. F.Supp. in various described other 925-34 ACLU, 844, 849-57, 1996). Reno v. See “community” shall not be held re- The relevant whose stan- provider service undefined, harmful violating govern for this subsection. dards what is sponsible purpose.” as is “commercial (Michie Supp. Ann. Ya.Code 2000). 1999) (amended Complaint The amendment Plaintiffs filed their and Mo- Preliminary Injunction Internet tion for pro- creates a defense for service (ISPs) providers and email United States District viders service Court the West- violating the statute uses an ern District of person when a December of Michael, provider or email service as the medi- 1999. The Honorable James H. ISP Jr., through prohibit- to disseminate United Statеs District Judge, um which Court granted or email service Plaintiffs’ Preliminary ed material. ISP Motion for however, Injunction by if it provider, would be liable Order and Memorandum on opposed Opinion August the material itself as 2000. disseminated Plaintiffs serving gateway through Summary Judg- as the which then filed a Motion for Granting Injunction, ment Final which passes. the material granted District October statute, Virginia In relation to the Code appealed The Commonwealth 18.2-390(6), defines term section summary judgment decision. juveniles” “harmful to as: accepted appeal This Court the and oral any description repre- or quality that of arguments were scheduled on October sentation, form, nudity, of whatever 21, 2003, January 2002. On this Court conduct, excitement, or sexual sexual sa- following questions certified the of law to abuse, domasochistic when Supreme Virginia: Court (a) appeals pru- to the predominately A. any Would the use of of the techno- rient, or morbid interest of shameful logical controls identified access juveniles, Attorney Virginia preclude General (b) prevailing offensive to patently § Virginia conviction under 18.2- Code community in the adult as a standards as amended in 1999? 391 respect to what is suitable whole with prohibition against B. Does the know- juveniles, and material for materials ingly displaying pornographic (c) is, whole, lacking when taken as juveniles” apply that “harmful to to are artistic, literary, political or sci- serious displays made in connection with juveniles. entific for value sale, rental, or loan materi- of such 18.2-390(7) “knowingly” defines as: Section not, government als? If what must the of, knowledge or reason having general that a defendant has prove establish know, ground or for or belief belief “for knowingly displayed such material in- inspection which warrants further or purpose”? commercial (a) quiry of both the character and con- PSINet, Inc. v. 317 F.3d Chapman, tent of material herein described (4th Cir.2003). 12, 2003 September On reasonably susceptible of exam- which is Supreme Virginia Court of advised (b) defendant, age ination and pursuant that to Rule 5:42 it would Court however, juvenile, provided, that ques- not furnish answers to the certified an honest mistake shall constitute an not be tions because the answers would liability if excuse from hereunder outcome determinative. defendant made reasonable bona fide two issues argues The Commonwealth attempt age to ascertain the true such First, that American Booksel- juvenile. appeal. that today. Especially given and material in this case binding precedent lers is to amend the legislature compelled felt subject not therefore, should the statute include “electronic Second, file[s] Act in 1999 to that challenge. facial to another ... containing ... and message[s] words Plain- granting erred the District Court (Mi- Ann. images.” Va.Code Summary Judgment tiffs’ Motion 2000). (amended Supp.1999) chie Injunction. Because we Final request for the statute is challenge to find that a facial statutory con principles of General facts of this case given the appropriate all a court to construe require struction summary Plaintiffs were entitled reject con meaning to have parts AF- injunction, we and a final judgment that render a term redundant. structions ruling. FIRM the District Court’s Corp., Reiter v. Sonotone See (1979) 60 L.Ed.2d Analysis II. (where explained effect, give possi if “obliged a court is Challenge Facial A Plaintiffs’ word”); ble, v. every Platt Union Pacif argues Co., 48, 58-59, The Commonwealth 25 L.Ed. 424 ic R.R. scope enlarge (1878) (if Act did not the 1999 renders a term construction that this Court’s bind 18.2-391 and redundant, rejecting section that is a reason for Booksellers, Browner, in American ing precedent construction); ‍​​​‌‌​‌‌​‌​​​​​‌‌​​‌‌‌‌​‌‌​​‌​‌​‌​​‌‌​‌‌‌‌​​‌​​​‍challenge. Cir.1996) (a (4th another facial precludes court 80 F.3d statute, which did version of the pre-1999 a statute in a manner should not “cоnstrue electronic materi explicitly reference of its terms to mere that reduces some als, provisions. “catch-all” Snider, contained two v. 502 surplusage”); United States materials, print (all (4th Cir.1974) In to harmful 645, reference parts of a F.2d 652 etc., books, including pamphlets, explicitly construed so that each statute must be provision the catch-all the statute included meaning); McLean Bank v. Nel part has In reference to reproduced.” 651, “however son, 420, 427, 350 656 232 Va. S.E.2d materials, representational (1986) harmful statutory interpretation (Virginia provision catch-all “or included the that all of a statute be requires words image.” or representation visual similar possible). The Vir given meaning where Commonwealth, electron According to the to amend sec ginia legislature’s decision materials, representation print ic both include electronic commu tion 18.2-391 to al, comfortably these two catch fit within simply not a redundant act nications was all and the 1999 amendment provisions already by the including an area covered included mate merely explicitly electronic Act, step making an affirmative but was already implicitly encom rials were communica applicable Act to Internet by the statute. passed clearly a tion. Thus the amendment was of the Act to a new purposeful extension arguments, how- The Commonwealth’s communication, and Plaintiffs area of ever, misguided. agree We with the are constitutionality challenge Acts facially reading that a of section District Court as reenacted. the catch-all 18.2-391 illustrates Furthermore, this Court’s decision Internet material. It phrases do not cover preclude does not to American Booksellers disingenuous is Commonwealth In American challenge. facial version of the Plaintiffs’ argue that when the 1985 (4th 125 Virginia, v. 882 F.2d Virginia legisla- Booksellers adoptеd statute was Cir.1989) only considered Internet this Court regulate ture intended to the vast

233 adult materials could ment as matter of law. Fed.R.Civ.P. whether non-obscene 56(c); Inc., Liberty Lobby, so Anderson v. and sold to adults stores displayed 242, 248, 2505, 477 106 “knowingly afford U.S. S.Ct. 91 long [ ] as sellers did not (1986). All peruse harmful L.Ed.2d 202 facts and reason opportunity an interpreted able inferences must be Id. at 127. After the Su- materials.” light non-moving certified most favorable preme Court of the United States Leathers, Virgi- party. See Miller v. 913 F.2d to the questions (4th Cir.1990). However, nia, 1087 concluded that the 1985 Act sum this Court mary segregate judgment appropriate “where the merely required booksellers reasonably support facts and the law will works onto a shelf located where book- few only one conclusion.” inappropriate Pepsi- would notice Hawkins v. personnel store (4th Co, Inc., carrying out their 203 F.3d 279 juvenile interest while Int’l, Cir.2000)(quoting at 127. McDermott Inc. v. regular duties. See id. Wilander, 337, 356, 111 S.Ct. Moreover, Amend this Court’s First (1991)). 112 L.Ed.2d 866 This Court re analysis ment American Booksellers grant summary views the denial of physi with traditional bookstores at dealt Jones, judgment Hodge de novo. apply to the cal locations and does (4th Cir.1994). F.3d In that the “unique wholly new medium of world undisputed material facts and law reason human communication” that is the wide ably support only one conclusion in the Reno, Internet. hand, case at we AFFIRM the District selling adult books and 2329. Nor does summary grant judgment. Court’s in a location raise the magazines fixed reg Clause concerns that state Commerce L.

ulation of the Internet raises. See Jack Analysis First Amendment Sykes, Alan Goldsmith & O. The Internet The District Court held that Clause, and the Dormant Commerce seeking to restrict the access of minors to Yale L.J. Internet, indecent material on the section challenge One facial of a statute does not bur imposes unconstitutional preclude challenge another of an amended adult a con protected speech. den on As grounds. on different Plaintiffs statute expression, tent-based restriction on the a facial permitted bring challenge were may only upheld if it survives (Michie Code section 18.2-391 scrutiny. Playboy strict United States v. Supp.1999) as amended and the District Inc., 803, Group, Entertainment 529 U.S. enjoining decision section Court’s 18.2-391 (2000) 1878, 120 S.Ct. 146 L.Ed.2d 865 proper. was (applying scrutiny strict to a law restrict I, ing explicit programming); Reno 521 B. The District Court’s Grant 870, (applying 117 2329 strict U.S. S.Ct. Summary Judgment scrutiny regulation speech). of Internet 11, 2001, the On October District Court scrutiny requires question Strict the law granted Summary Plaintiffs’ Motion for 2) 1) narrowly promote to be tailored to Judgment Injunction and entered a Final compelling government Playboy, interest. against the enforcement of section 18.2- 813, 120 529 U.S. at S.Ct. 1878. summary judgment 391. A motion for government has the burden granted only genu- should be if there is no The regulation dispute showing ine as to an issue of material fact content-based moving judg- speech necessary compel- is entitled to “is to serve party 234 constitutionally protected, First v. is interest.” Nat’l Bank vio-

ling state Bellotti, 788-89, 98 S.Ct. lates the 435 U.S. First Amendment. (1978). 707 It is clear 55 L.Ed.2d general down Several courts have struck protect- government’s that the interest restrictions on bans blanket Internet sexually explicit ing Internet minors from speech harmful to un- deemed compelling. Ginsberg See materials is constitutionally The overbroad. Common- York, 629, 639, New interpret wealth that we suggests section (1968) 20 195 New (recognizing L.Ed.2d regulating 18.2-391 as Internet limiting interest compelling York’s speech occurring within Common- minors); availability of sexual material to However, Virginia. wealth of other stat- Found., 726, 749, 438 FCC v. Pacifica geographic utes with that same restriction (1978) L.Ed.2d impermissibly have been down as struck (recognizing government’s interest chilling general- to protected speech. See limiting the broadcast offensive words Pataki, ly, Libraries Ass’n. v. American dealing with sex that wаs accessible to (S.D.N.Y.1997). 969 F.Supp. Attempt- children). question The then becomes ing to regulation localize Internet is ex- narrowly Act

whether the is tailored so tremely problematic because Internet may pass scrutiny. that it strict “by its has no local nature areas.” Both sides concede that the 1999 Marglin, Charles & David Nesson narrowly Act tailored if it effects Day the Internet Met the First Amend- display total ban on the of all “electronic ment: Time and the Communications De- message[s],” containing or “harmful” file[s] Act, cency Harv. & Tech. J.L. words, or sound images recordings, juveniles may “examine and peruse,” as explained Other courts have that: the plain language of the statute seems to user cannot [A]n Internet foreclose ac- indicate. Va.Code Ann. See (Michie (amended 2000). cess her work from certain or states Supp.1999) To differing send versions of her communi- unconstitutionality from save the statute jurisdictions. cation to different In this proposes the Commonwealth certain statu sense, in a tory However, the Internet user is worse interpretations. even with position than truck driver or train Commonwealth’s creative construc tions, engineer statute remains who can steer around Illinois unconstitutional ly Arizona, change mudguard or or or impotent overbroad becomes line; train configuration at the state thus unconstitutional under the First ability bypass Internet user has no Amendment. any particular state. The user must The Constitution provides signifi thus comply regulation imposed with the protection cant “from that overbroad laws by the with the most stringent state chill the First speech within Amendment’s forego standard or Internet communica- privileged sphere.” vast and Ashcroft might tion of that message might Coalition, 234, 244, Speech Free 535 U.S. subject prosecution. to her (2002). 122 S.Ct. L.Ed.2d 403 overbreadth, Pataki, fact, of F.Supp. Under the doctrine a stat at 183. In parties ute violates the First if it on of the pleadings Amendment based prohibits courts, a substantial amount federal protected findings of other expression. In Id. that District that for section 18.2-391 Court found “most com- Internet, penalizes a speech speaker substantial amount of munications over the to one over and to address another.” Id. at no effective control little or has gain or adults are able 2329. Individuals minors who wish whether Ct. Dist. to his communications.” images might access to communicate that fall Reno, at (citing 521 U.S. at 298 Op. J.A. proscriptions within the statute’s must 2329). District 855-56, The It prosecution. thus self-censor or risk “speakers publish that who found Court type regulation, pro- of otherwise make their materials generally the Web that other courts have con- speech, tected to users around publicly available sistently struck down unconstitutional. world, age, and lack regardless The asks the Commonwealth preventing practical or reliable means propositions read other into section 18.3- to the informa- gaining from access minors guise narrowing 391 under the construc- the true verifying or for tion on their sites suggests tions. The Commonwealth that Id. The age of users of their Web sites.” providing section read as a 18.2-391 be explain went further to District Court requires a an adult defense when Web site the Internet is: PIN number for access. dis- [W]holly geographic insensitive to tinctions, protocols and Internet were construction Under Commonwealth’s rather than to docu- designed ignore 18.2-391, a a employing of section Web site com- geographic location. While ment an security requiring screen adult PIN will Internet do have “address- puters on the prosecution. be immune from These PINs es,” on the network they are addresses through regis- can adult PIN be obtained geographic than addresses real rather online, or the tration services Web site Internet addresses contain space. Most PINs itself. An adult could distribute An information at all. geographic no by providing would a PIN a credit obtain posts page who Internet user Web Op. card number to the service.2 Dist. Ct. readily prevent cannot resi- one state at 13-14. J.A. viewing that dents of other states from argues The that an affir- Commonwealth or even discern which state page, mative defense for PIN numbers must be the site visitors to reside. in light read into section 18.2-391 Pataki, at Op. (citing Dist. Ct. J.A. Virginia’s nar- Supreme previous Court of 170). speakers In that F.Supp. at Internet in Commonwealth v. rowing construction juve- way preventing Virginia have no Ass’n., 236 Va. American Booksellers accessing speech, their Internet niles from 624-25 372 S.E.2d “severity of criminal sanctions Virginia explained Court of to remain silent rather speakers well cause 18.2-391, under section prove violation arguably than communicate even unlawful bookstore, physical in the context of a “the Reno, words, ideas, images.” Commonwealth would have the burden of In attempt 117 S.Ct. 2329. an proving beyond a reasonable doubt deny potentially minors access to harmful afford- knowingly the defendant bookseller speech, “effectively section 18.2-391 will opportunity peruse ed suppress[ large speech amount of ] materials, right to receive harmful or took no reasonable adults have constitutional validity only a PIN number defense because It is assumed adults will have credit the of contractually only cards because adults are a appellants failed to establish that PIN charges. obligated pay card back credit system adequately screen out number would see, Reno, 881-82, S.Ct. But 521 U.S. at juveniles). (where Supreme questioned Court one explicitly add the perusal when the section 18.2-391 prevent such steps to it to include. The reasonably ap- was defense that intended juvenile’s opportunity (emphasis liability Id. limits the 2000 amendment to the bookseller.” parent per- providers is and email service who The Commonwealth ISPs original). that the upon through the Court a which urges simply serve as medium suaded steps prevent prohibited “reasonable an disseminates mate- language, offender rial, in the 1988American Book- perusal,” says nothing regarding such the liabil- but as al- should be construed ity sellers decision sites that use PIN of commercial Web (Mi- PIN number defense lowing an affirmative Ann. numbers. Va.Code (amended 2000). of the Act. amendment to the 1999 Supp.1999) chie Furthermore, Supreme Court using “every general principle The is Virginia’s language in American Book- must be resorted reasonable construction sellers, no that the use there is indication to, from uncon in order to save a statute be considered a of a PIN number would DeBartolo stitutionality.” Edward J. “reasonably step” prevent “reasonable Bldg. Coast & Const. Corp. v. Florida Gulf by juveniles. As the apparent” perusal Council, 568, 575, 108 485 U.S. Trades out, (1988). previously pointed Plaintiffs have 1392, L.Ed.2d 645 Howev certainly agree not Commonwealth would er, “readily susceptible” if a statute is or store that sold to liquor tobacco narrowing construction will the court to a number, anyone with a valid credit card apply a construction to save other such step to ascertain without some additional Virginia v. wise unconstitutional law. customer, taking was rea- Ass’n, Inc., age Booksellers 484 U.S. American to exclude from the steps sonable 383, 397, 636, 98 L.Ed.2d 782 purchase age prohibitive products. explained has Court the rea- questioned Other courts have both narrowing only ap constructions are of credit sonableness and effectiveness “the or other source of propriate when text verification, indication card and there is no line congressional intent” identifies clear Virginia legislature intended to Reno, that a could draw. 521 U.S. at court adopt verifications as an af- PIN number 884, 117 S.Ct. 2329. Courts must be care defense to section 18.2-391. This firmative upon legislative ful not to invade do an affir- authority has no to include main and a court should never “rewrite defense to section 18.2-391 where mative require law to conform to constitutional no indi- Virginia legislature given has Reno, 884-85, 117 ments.” See that it intended (explicit implicit) cation S.Ct. 2329. defense. to include said PIN number de- The Commonwealth’s num- Finally, the PIN “readily susceptible” fense from the Commonwealth’s to the statute’s First Amend- congressional text or other source of ber solution ment creates First Amendment reading adding problems intent. an affir- Such its own. The District Court might problems mative PIN number defense be stigma that the associated with possible Virginia legisla- explained if not for the may the content of these Internet sites explicitly ture’s decision to state the de- visiting they them if 18.2-391. In deter adults from applicable fenses section of ano- just year it enacted the cannot do so without the assurance one after many out that nymity. pointed The Court language making applica- section 18.2-391 communication, unwilling provide their Virgi- adults ble to Internet online, and would credit card number legislature nia went back and amended a restric- chat or on for the site. Such rooms bulletin boards “com- therefore visit complete block purposes” subject also serve as a mercial will still be tion would adult material who wish to access regulation to adults under section 18.2-391. The card. Such re- do not own credit but to suggest Commonwealth seems that the unduly protected burden quirements would engaged number of Internet users in this in violation of the First Amend- speech type speech is so small that a on ban ment.3 speech this commercial in these forums is However, permissible.4 of in- number

The District Court was correct its engaged particular type dividuals adult sites requiring conclusion that Web speech is not determinative of whether would unconstitu- to utilize PIN numbers protections First Amendment af- must be speech. chill free In that tionally type speech. forded to that proposed construction Commonwealth’s still render section 18.2-391 uncon- would out, pointed par- As the District Court Amendment, it stitutional under the First ticipants in online chat rooms and discus- this would make no sense for groups way sion have no to tell when adopt that construction. join participants from another state The also asks this Court Commonwealth participant conversation or whether that in a manner to construe section 18.2-391 a minor. Op. Dist. Ct. J.A. 299. As virtually exempt bulletin boards would such, speakers engage could never in com- regulations. from and chat rooms its speech mercial adult in these of fo- types correctly points out that Commonwealth subjecting rums without themselves to the the 2000 amendment to section 18.2-391 essence, possibility liability. of criminal In liability providers limits the of service who speech complete protection receives nothing up do more than set the Internet engaged adults could never be chat room or bulletin board. See Va.Code particular unless the chat room or bulletin (Michie Supp.1999) Ann. juveniles.5 completely board banned Fur- (amended 2000). The amendment does thermore, banning juveniles from these not, however, exempt speakers who particular prevent formats would them post material in chat rooms and bulletin ie. materials, accessing from beneficial boards. materials, non-sexually they con- explicit By that in tain. own admis-

The Commonwealth admits Commonwealth’s sion, messages in section 18.2-391 cannot be construed speakers post dividual who ACLU, argument 3.The dissent cites to 4. The Commonwealth makes Ashcroft speech 583 n. spite of the fact that term (2002), propоsition L.Ed.2d 771 for the purposes” "commercial remains undefined recognized Court has "adult section 18.2-391. a feasible Internet identification screens” as however, Ashcroft, alternative. The Court in sug- 5. The Commonwealth has been unable to "community exclusively focused on the use gest any equivalent the adult verification standards” to screen "obscene” Internet currently available to commercial measures purview speech, an area that falls outside the operators Web site that could be utilized the First Amendment. The Court in Ash- wishing engage protected individuals "express explicitly stated that it did not croft speech in rooms or on bulle- commercial chat any view" as to whether the Child Online tin boards. Act, Protection and its use of adult identifica- screens, scrutiny tion would survive strict 585-86, analysis. Ashcroft, 535 U.S. at S.Ct. 1700. 238 (1993) (internal 124 L.Ed.2d 472 citations exempts chat way completely a omitted). ‍​​​‌‌​‌‌​‌​​​​​‌‌​​‌‌‌‌​‌‌​​‌​‌​‌​​‌‌​‌‌‌‌​​‌​​​‍speech regula boards. blanket Even commercial

rooms and bulletin speech commercial prohibition “may provides of adult not be sustained if it tion the First imposes violates that the statute for the support ineffective or remote Amendment. purpose.” Central Hudson government’s v. Public Service Corp. Gas & Electric completely if construed Even the Court N.Y., 557, 564, 447 100 Comm’n U.S. manner that section 18.2-391 2343, 65 L.Ed.2d 341 S.Ct. such a construc requests, Commonwealth virtually power the Act tion would leave being In to avoid too burdensome order government defends When the less. cannot, by speech, on the statute protected as a means to redress regulation speech admission, pro- the Commonwealth’s own harms, prevent anticipated or past harms juveniles foreign from or out- tect simply “posit than it must do more materials, non- regulate Internet of-state sought disease to be existence of the materials, regulate commercial Internet F.C.C., Sys. v. 512 cured.” Turner Broаd. or in posted materials on bulletin boards 2445, 622, 664, 114 129 L.Ed.2d U.S. S.Ct. of the In- chat rooms. Given the nature (1994) TV, Quincy Inc. (quoting 497 Cable ternet, leave such construction would (D.C.Cir. 1484, FCC, v. F.2d 1455 768 virtually powerless. In section 18.2-391 1985)). “It demonstrate that the re must findings, explained the District Court’s real, merely conjectur cited harms are not Internet do that “Communications on the al, in fact regulation and that will appear an individual’s home or not ‘invade’ harms in a direct and mate alleviate these computer one’s screen Rath- unbidden. 624, 2445; 114 way.” rial Id. at S.Ct. see er, receipt ‘requires of information Fane, 761, 770- also Edenfield steps series of affirmative more deliberate 1792, 71, 123 L.Ed.2d 543 113 S.Ct. ” merely turning than a dial.’ and directed that the is on the (1993)(explaining burden Reno, Op. (quoting Ct. J.A. at 296 Dist. uphold a restriction on party seeking to 2329). 854, at As the 521 U.S. S.Ct. to “demonstrate that speech commercial argument, District noted at oral the harms it recites are real and its merely there is no to a law which benefit in fact alleviate them to a restriction will pornographic reduces the number of re- degree”); Angeles material Los v. Pre juvenile sponses to an Internet search Communications, Inc., 476 U.S. ferred 186,000 183,000 responses respons- from 2034, 90 L.Ed.2d 480 (hypothetically). es J.A. (1986) that a (explaining “[c]ourt technology There is no indication that al simply assume that the ordinance will to track sites or site users exists Web Web ways advance the asserted state interests give in a manner that would section 18.2- sufficiently justify abridgment its of ex bite. There is also no indication activity”). scrutiny pressive Where strict harmful mate- significant that a amount of applies, appreciable a statute that “leaves origi- in Virginia rial available to damage supposedly [compelling] to th[e] or comes nates within the Commonwealth interest” uncorrected is invalid. Church of subject who would be Aye, City Babalu Inc. v. from individuals the Lukumi Hialeah, jurisdiction.6 Fur- the Commonwealth’s Stales, Reno, percentage F.Supp. some 6. See ACLUv. 882-83 the United (E.D.Pa.1996) represents pornography,” (explaining "[njearly figure and that half from, say, originate "[plornography Amsterdam will be outside Internet communications Reeves, Stake, 429, 437, thermore, only regulates Inc. v. 447 18.2-391 U.S. section sites, (1980)). leaving significant 100 65 L.Ed.2d 244 commercial Web S.Ct. harmful, non-commer- equally of number Several courts have struck down state sites, could be screened cial Web to Virginia statutes similar Code section un- filtering technology, current Internet unduly 18.2-391 as burdensome on inter- at 447. regulated. See J.A. effect, they, state commerce because commercial restrict electronic materials essence, has In the Commonwealth states, just all the state which the that sec- way demonstrate in failed to example, statute was enacted. For muster. passes Constitutional tion 18.2-391 Pataki, American Libraries Ass’n v. 969 language of section 18.2- Using plain (S.D.N.Y.1997), F.Supp. of all “elec- 160 the District banning display containing message[s],” or found that there no file[s] tronic Court because was words, or record- images “harmful” sound way to limit ma- effective access online juveniles may pe- “examine and ings, that location, geographic terials Web site ruse,” narrowly tailored solution is not operating legally owner in California would unconstitutionally overbroad. On and is comply have to with New York’s law to hand, nar- using proposed other subject liability being avoid there. Id. renders section 18.2- rowing constructions may at 174. This deter the California Web and therefore constitutes powerless placing site from material on its the Inter- under impermissible regulation speech net, thereby affecting legitimate commerce the First Amendment. See Church least, of New York. At the outside Aye, City Babalu Inc. v. Hial- Lukmni California Web site would have to incur eah, 520, 546, 2217, 124 expense complying with New York’s (1993). ap- L.Ed.2d 472 Under either willing post law if it the materials were unconstitutionally proach, section 18.2-391 (because online at all materials accessible speech chills free and therefore violates equally in California are accessible online the First Amendment. York). in New Analysis Pataki, 2. Commerce Clause Adopting the rationale of rejected the District Court Common- only may Not the District Court’s analyzed section arguments wealth’s upheld based on section 18.2- decision be regulation as a direct of inter- Amendment, the First 391’s violation of at- state commerce. The Commonwealth upheld sepa on the the decision by the Dis- tacks the conclusion reached ground rate that the statute violates argues trict the statute negative implica Commerce Clause. The narrowly comply construed should be (the of the Commerce Clause Dor tion The with the Dormant Commerce Clause. Clause), Art. mant Commerce U.S. Const. that it should “be argues Commonwealth I., prohibition § cl. includes a on state body ... legislative ... that a presumed against that “discriminates regulation enactments an give did not intend to its commerce and unduly burdens interstate operation.” extra-territorial impermissible trade in the thereby imped[es] private free The Statutes Common- Motors C.J.S. marketplace.” national General 278, 287, 117 argues that the statute must be wealth Corp. Tracy, v. (1997) impermissible have an effect (quoting read not to 136 L.Ed.2d 761 have little incentive appealing a child on the Internet residents of Amsterdam no less CDA.”) comply pornography City, and with the than from New York applicable to indi- balancing forth the test of the statute makes language unless Planned of interstate commerce. reading impossible. regulations See rect such a Camblos, 155 F.3d inquiry first looks the le- Parenthood two-fold of the state’s interest and second- gitimacy ly on interstate com- weighs the burden asserts The Cоmmonwealth the local benefit derived light merce a narrow construction through such Pike, 397 U.S. at from the statute. array the “broad govern not statute would question Virgi- There is no S.Ct. 844. that have no sites” of out-of-state Web in compelling protecting nia has a interest being Virginia “other than contact with physical psychological well-being and logical conclusion of here.” The accessible a of minors. The local benefits of such is that the statute would argument however, statute, proven. have not been or sites based in-state only govern Web other form of suffi- sites with some Web Act it By construing the so Virginia more substan- cient contacts with communication, reaches intrastate merely being accessible here. tial than in the again finds itself Commonwealth specify does not what The Commonwealth it in First same conundrum as did its might of contacts be. types those analysis. If the Common- Amendment out, pointed As the District Court capable limiting wealth is its Internet the Internet itself makes the nature of directly offend the regulation as not proposed construction Commonwealth’s Clause, then it will have no Commerce nearly impossible. unique “The nature of given the vast number of oth- local benefit the likelihood that highlights the Internet options er communication available to subject haphaz- be single might actor juvenile seeking them. uncoordinated, ard, out-right and in- even if can be con- Even section 18.2-391 regulation consistent states directly in a that does not strued manner and possibly actor never intended to reach Clause, the statute violate the Commerce being Pa- was unaware were accessed.” the Dormant Commerce still fails under taki, at F.Supp. 168. Given broad analysis of Pike v. Bruce Clause Church. Internet, it difficult to see reach of the is granting correct in The District Court was of Internet mate- regulation how a blanket Summary Judgment Plaintiffs’ Mоtion for 18.2-391, rial, such as section can be con- because section 18.2-391 violates the Com- only a local strued to have effect. See merce Clause. Reno, 887-95, 521 U.S. (Justice O’Connor, concurring part in and III. Conclusion part) (discussing in the difficul- dissenting ty zoning in law to applying principles analogous The content of the Internet Internet). night sky. to the content of the One state

However, from simply even if the cannot block a constellation Commonwealth’s Act without block- limiting applied, construction were the view its own citizens of the citizens of ing affecting would nonetheless be an invalid indirect or the view sexually explicit ma- regulation of interstate commerce because other states. Unlike mortar imposes it com- terials disseminated brick and the burdens interstate space, to the local electronic materials are distrib- merce are excessive relation uniformly The Internet piecemeal. benefits it confers. In Pike v. Bruce uted Church, Inc., simultaneously and distributes its content 397 U.S. 90 S.Ct. noted, (1970), the District Court L.Ed.2d 174 Court set worldwide. As imaging technolo- thermal day some be sufficient device to measure heat there constitutional. escaping to render this statute from a residence gy constitutes However, light technology, residence); of current search of the v. Free Ashcroft Coalition, reasonably cannot construed Speech the statute to meet both First Amendment Com- (2002)(finding 152 L.Ed.2d 403 un- challenges. merce Clause District provisions constitutional certain granting Plaintiffs’ Court was correct Child Pornography Prevention Act of Summary Judgment grant- Motion for §§ 2251 seq.). major- 18 U.S.C. et But the ing injunction against section permanent all, ity opinion good makes no law at Therefore, the District 18.2-391. Court’s Rather, simply bad. it applies settled law hereby decision is facts, to new does so a manner that is consonant with and well within the AFFIRMED. judicial

boundaries of the It functiоn. is DAVIS, Judge, concurring: District that, plaintiffs’ no answer to the claims to assuredly achieve compelling its interest in all Indubitably, agree, government as protecting exposure children from to on- protecting in compelling has a interest Virginia line pornography, has done the I participating children from harm. Were best that available technological know-how doting grandfather that in this case as the context, In a related Supreme allows. the be, eagerly I proud I am would embrace has cautioned that Govern- “[t]he by the result reached the dissent. Shed- may suppress speech ment not lawful however, role, must, ding my familial as I the means to suppress speech. unlawful I am my proper judge, pleased for role as speech unpro- Protected does not become join Judge Spencer’s opinion. merely tected because it resembles the The Commonwealth’s contention Id. at latter.” S.Ct. 1389. Simi- challenge facial to the amended statute is larly, protected the online dissemination of foreclosed on the basis of stare decisis is a (a may not be speech criminalized surefire legal wholly unper- formalism that I find suppression) merely form of such because suasive. For the reasons stated might speech Virginia’s be accessible majority opinion, simply it could not be Thus, inadequately-supervised minors. Virginia legislature more clear that Virginia’s parents effort to do for and exactly amended the because the statute guardians they the con- what —without prior law did not reach electronic media. imposed prohibi- straints constitutional compel- I of the do believe resolution (and able) do for tions—are free better ling plain- overbreadth claims asserted themselves, may Virginia fails. Nor reach tiffs in this case can or should be avoided online beyond suppress hеr border way. in this speech everywhere, even if such an at- merits, majority opinion On the tempt any plausible prospects had of suc- unwaveringly faithful to extant First cess, it which of course does not. princi- Amendment and Commerce Clause true, ples. Perhaps may Supreme it is as Justice Holmes It be that the Court will stated, creating famously day that hard cases some- one undertake the task law, certainly, speech protection make and as we new metric of times bad know, Internet,” it has not done rapid technology “Age all advances but fully I concur in E.g., Kyllo Accordingly, make hard cases. so to date. sometimes States, opinion affirming judgment United (2001)(holding 150 L.Ed.2d 94 that use of a district court. follow, I

NIEMEYER, Judge, For the dissenting: disagree Circuit reasons First, respectfully and dissent. therefore police powers, its the Com- Acting under rejected we facial First Amendment Virginia Virginia enacted monwealth of challenge to this statute American Bo- making unlawful “to Code oksellers, that ruling 882 F.2d display purpose” for commercial knowingly case, compelling now binds us in this us to materials that harmful to pornographic are constitutionality of the whereby juveniles uphold manner statute “in a peruse” challenge. them. Va.Code against examine facial second Sec- 18.2-391(a) §Ann. Materials were ond, the First even if we conduct Amend- any designated represen- include visual analysis again, ment I would find the stat- any printed image, tation or matter howev- (1) Virginia ute constitutional because has recording. er sound reproduced, protecting juve- compelling interest its Id. materials, pornographic niles from harmful (2) the Virginia employs

In the least Court of scope promote of this statute narrow restrictive that will construed alternative v. Am. ly, Booksellers interest, see Commonwealth Virginia’s especially view of the Inc., Ass’n, 236 Va. S.E.2d Virginia Supreme Court’s authoritative (1988), on this narrow construc and based (3) statute, and by ap- construction of the tion, the statute to be we held constitution plication minimally burdensome technol- challenge, al Amendment against a First available, ogy speech among that is no now Ass’n, Virgi see Am. Booksellers Inc. v. I suppressed. adults is would con- also (4th Cir.1989) nia, 125, F.2d 127-28 that clude the statute does not violate the (concluding “places that the statute a mini dormant Accordingly, Clause. Commerce mal represents burden on booksellers and I judgment would reverse the the dis- constitutionally permissive exercise of injunction trict court vacate the and denied, powers”), police state’s cert. against the district court entered enforce- Ass’n, Am. Inc. Virginia, v. Booksellers § ment of 18.2-391. Virginia Code 108 L.Ed.2d (1990). I § 18.2-391 in Virginia amended 1999 to specified examples that the explicit make it When first enacted visual, written, and recording media sale, § only Code to applied 18.2-391 regulated any were included “elec- rental, pornographic or loan of material message.” tronic file or Ann. Va.Code juveniles.” Virginia deemed “harmful to 18.2-391(A)(1999). § modeled York its statute on New commenced This action was to mount upheld against a First Amendment chal- challenge renewed facial First Amendment lenge Supreme Court Ginsberg statute, to as amended in 1999. On York, New plaintiffs’ summary judgment, motion for L.Ed.2d 195 held that district court the statute § In Virginia amended to Amendment, First violated the as well as sale, rental, prohibit only or loan- Clause, the dormant Commerce of the U.S. ing juve- “harmful material deemed Constitution, permanently enjoined niles,” knowing display but also to enforcement of the statute the electronic commercial purpose. af- such materials for appeal, majority medium. On now form, provided: In firms. amended the statute (a) any display person comply unlawful for methods It shall be with sell, juve- amendment,” or to a knowingly rejected Virginia’s rent loan we сhar- nile, knowingly display com- or to acterizations. Id. We ruled that “[t]he whereby in a manner purpose mercial display suggested by methods the Com- peruse: examine and appeared] monwealth either insufficient to comply unduly with the amendment or Any photography, drawing, picture, 1. film, rights burdensome on the first amendment sculpture, picture motion or similar ” per- of a of adults.... Id. representation image visual or We reasoned body “[p]laeing only’ which portion tags son or of the human ‘adults on books and nudity, sexual depicts sexually explicit magazines displaying or the restricted ma- abuse and conduct or sadomasochistic terial behind blinder or on racks adults juveniles, or only freely which is harmful shelves accessible the main part stop any of the store would not deter- book, Any pamphlet, magazine, juvenile examining perus- mined from reproduced, matter however or printed Further, ing the Id. “[f]orcing materials.” recording sound which contains mat- (1) separate, a bookseller to create a moni- of this ter enumerated subdivision section, subsection, tored adults explicit requiring or and detailed ver- sealed, descriptions taking or narrative accounts of the materials be or the ma- bal excitement, off display keeping sexual sexual conduct sa- terials them ‘under which, abuse and taken unreasonably domasochistic the counter’ with interfered] whole, juveniles. is harmful to right the booksellers’ to sell the restricted ability buy materials and the adults’ 18.2-391(a) (emphasis Ann. Va.Code them.” Id. identify statutory language in- added amendment) (“1985 Version”). serted review, On the U.S. Court con- Virginia Supreme cluded that the Court’s The of the statute became 1985 Version might construction of the statute better subject chal- the of First Amendment constitutionality: determine the statute’s opinions by lenge produced five the of the authoritative construction Vir- Court, “[A]n Suрreme Supreme U.S. the Court ginia by Virginia Supreme the court, Virginia, of and our in the end it but substantially aid our review of Court would was held not to violate the First Amend- might holding, constitutional well [the] ment. entirely.” Virginia determine the case we first reviewed the 1985 Ver- When Ass’n, Inc., 383, Am. Booksellers 484 U.S. statute, conducting sion of the a review of 386, 636, 98 L.Ed.2d 782 108 S.Ct. facial that the challenge, we held accordingly ques- The certified two Court “diseourage[d] the exercise of first Version regarding interpretation tions of the 1985 in a rights amendment real and substantial Supreme Virginia, of Version to the Court fashion, readily subject not [was] pursuant Virginia to Rule 5:42 of the Su- interpretation narrowing to a so as to with- at 636. preme Court. Id. 108 S.Ct. challenge.” Am. stand overbreadth Bo- scope of law’s cover- Focusing on the Ass’n, Virginia, oksellers Inc. v. 802 F.2d Supreme age, the United States Court (4th Cir.1986) (“American 691, 696 Book- question: asked in its first I”). Although Virginia stressed sellers juveniles” “only phrase Does the “harmful to percentage a small of the inven- §§ tory Virginia stores could be classified as as used Code book (1982 Supp.1987), juveniles” harmful to and therefore that and 18.2-391 construed, encompass any of readily modify properly “retail their [could] outlets not, If would the stricted materials? plaintiffs’ exhib- introduced as the books with if the store’s below, general complied standard statute be and what its the stat- or otherwise policy used to determine were announced should be juveniles’ differing light public? ute’s reach manifested to the maturity? ages and levels at 108 S.Ct. 636. Whereas argued Virginia 636. Id. at 108 S.Ct. alleged compliance with plaintiffs that were sub- of the 16 books that none require law would drastic measures as books covered by plaintiffs mitted the store or com- reconfiguring such as in fact covered by the statute were store, barring minors from the Vir- pletely that the reach of It maintained statute. that “a bookseller will not be ginia argued narrower. Id. at much the statute was if, subject prosecution to criminal 393-94, Supreme The U.S. 108 S.Ct. pre- policy, matter of store the bookseller true, that is methods noted that “[i]f Court juvenile reviewing cov- vents a observed substantially that are compliance exist so, continuing from to do even ered works than those discussed less burdensome segre- if the materials are restricted at courts.” Id. the lower 396, 108 S.Ct. 636. The gated.” Id. at that “it is es- 636. The Court concluded explained impor- Supreme Court U.S. of the that we have the benefit sential “If question: this is tance second from the authoritative construction law’s means, what the statute the burden to the Virginia Supreme Court.” Id. bookseller, buying pub- and the adult book S.Ct. 636. lic, significantly less than that feared Su- question, In the second 397,108 by plaintiffs.” Id. at and asserted compliance focused on what preme Court S.Ct. 636. could take potential defendants measures Virginia accepted Supreme Court prohibi- of the law’s running to avoid afoul questions responded the certified Accordingly, tion. question, applying three-part the first posed question: as its second statute, Ann. test set forth Va.Code given to the meaning is to be What 18.2-390(6), defining § the term “harmful 18.2-391(a) Code provision * Am. juveniles.” Commonwealth v. making it unlawful “to (Supp.1987) Inc., Ass’n, 236 Va. Booksellers pur- for commercial knowingly display (1988). two As to the first S.E.2d juveniles whereby in pose a manner test, recognized court prongs of the the materials? peruse” examine or certain questions of fact for they presented provision complied Specifically, is a by properly determination instructed a by plaintiff a bookseller who has with jury. prong, Id. at 623. The third howev juveniles to ex- policy permitting of not er, question was found to involve a mixed by materials covered peruse amine and proper law and fact that the court could of prohibits and who such con- the statute “if observed, ly Id. The court concluded that takes decide. duct when but otherwise literary, found have a serious display of re- work is regarding no action * 18.2-390(6): prevailing patently § offensive to standards in Quoting Virginia “Harm- Code " quality juveniles community respect means that of as a whole with the adult ful description representation, in whatever juveniles, material for to what is suitable form, conduct, nudity, sexual excite- whole, of sexual is, (c) lacking when taken as a in abuse, (a) ment, when it or sadomasochistic artistic, literary, political or scientific serious appeals prurient, predominantly to the juveniles. value for (b) juveniles, morbid interest of shameful or artistic, compliance for a would in with or scientific value the statute. political normal, Finally, Id. minority assumption older ado with the that “the of legitimate hypothetical lescents, policy said to lack such bookseller ‘who has a of then it cannot be juveniles juveniles permitting of taken to examine and for the entire class value Virginia peruse by The materials covered a whole.” Id. at 624. statute’ merely upon that none of the does not cerebrate then concluded such court policy, but takes by plaintiffs steps put as exhib reasonable books submitted artistic, effect,” into the court literary, political, answered the second its lacked serious legitimate minority question for a certified the affirmative. Id. or scientific value adolescents, Court, older, According Supreme to the Virginia normal thus juve “imposes relatively the 1985 were “harmful to Version none of books bookseller, meaning light upon Ann. burden in con- niles” within the Va.Code 18.2-390(6). trast to the state’s in protecting Id. interest juveniles from materials harmful to them.” Virginia pro- also Supreme The Court Id. of the 1985 vided a narrow construction Upon receipt Supreme of the Court of responding to the certified

Version Virginia’s answers to thе two certified focusing compliance on measures. question questions, Supreme the U.S. vacated explained court that the scienter re- our decision ‍​​​‌‌​‌‌​‌​​​​​‌‌​​‌‌‌‌​‌‌​​‌​‌​‌​​‌‌​‌‌‌‌​​‌​​​‍American Booksellers I quirement significant: in the statute was and remanded the case to us for reconsid proof beyond A must consist of violation a reasonable doubt that ^[1] the booksel- eration the case in light Virginia Supreme construing answers Court’s juveniles op- knowingly ler afforded portunity his store sufficient or, peruse put ^[2] a reasonable being harmful aware of facts materials person 254, 102 L.Ed.2d 243 sellers Ass’n, narrowly. Virginia Inc., v. Am. Book existed, opportunity notice that such In Virginia Supreme view of the Court’s steps prevent no took reasonable statute, construction of we reversed by juveniles. perusal of such materials previous our that the 1985 Ver conclusion First Again, S.E.2d at 625. the court stat- sion was unconstitutional under the “[rjeasonable Ass’n, ed, Inc. prevent perusal efforts to Amendment. Am. Booksellers (4th juveniles Virginia, of harmful materials are all v. 882 F.2d Cir. 1989) (“American II”). requires that the statute of a bookseller.” Booksellers We court, According Virginia’s to the noted that the Court of “[t]he Id. explanation that “the amendment was question whether a bookseller’s efforts reasonable, at ‘the any given browsing set of cir- not aimed at mere but were is, course, may afford to opportunity bookseller] cumstances an issue of fact to [a books properly-instructed jury, be resolved to take off shelves they buy, which are unable to and to read general principles but certain be dis- in at 127. provided cerned.” Id. The court then “a them the store.’” Id. Most with importantly, “agree of a method a we that we example clear bookseller stated Virginia Supreme Court that might easily adopt” violating to avoid places If a minimal placed statute. Id. a bookseller all re- amendment to the statute represents burden on and sight stricted books on a shelf booksellers ju- constitutionally permissive and intervened whenever a exercise of bookseller police powers.” Id. at 127-28. The attempted peruse venile and examine state’s shelf, ultimately held con- books on that then the bookseller 1985 Version was thus plaintiffs enforcement of the statute. The a facial First Amend- against stitutional ac- provide are businesses that Internet de- The challenge. ment PSINet, Inter- (e.g., cess the Commercial a writ of certiorari. petition for nied the Association); businesses Exchange net Ass’n, Virginia, Inc. v. Am. Booksellers over the provide that content transmitted 108 L.Ed.2d Sexual (e.g., Internet Charlottesville Clinic, A Different Health & Wellness § all-inclusiveness of 18.2- clarify the To Bookstores); pro- Light individuals who represen- any visual applied 391—which over the Internet vide content transmitted any printed matter howev- image, tation or (e.g., Bright); membership and or- Susie recording— and sound reproduced, er ganizations representing individuals whose visual, written, or explicit and to make pornographic access to materials would include those materials sound-recorded (e.g., People the law for the limited electronically, Vir- created or transmitted Way). American speci- the statute ginia amended granted plaintiffs’ court The district image fy representation that a visual summary judgment perma- motion for message file or con- includes an “electronic enjoined enforcing nently Virginia from matter taining image” printed an and that § Virginia Code 18.2-391 “to the extent includes an “electron- reproduced however rental, sale, display loan or prohibits containing words.” 1999 message ic file or message containing an file or an ‘electronic (codified as Ann. Va. Acts ch. 936 Va.Code message file or image’ or ‘еlectronic Amendment”). 18.2-391(A)) (the § “1999 ” PSINET, Inc. v. containing words.’ commenced this action as plaintiffs The F.Supp.2d Chapman, § challenge facial 18.2-391 second (W.D.Va.2001). so, doing In the court 1999 Amendment. clarifying view of the ruled that the extension of the law to the the statute is unconstitu- Contending that of the First Internet created violation under the First Amendment and tional previously Amendment where there had under the dormant Commerce Clause district court ex- been none. As the Constitution, they allege plained: reach of 1999 Amendment extended the version of section pre-amendment physi- the 1985Version of the statute from only to traditional me- applied that, space cyberspace cal into because thus made it physical spaces, dia Internet, of the nature of the the 1999 access to in- possible to restrict minors’ sufficiently precise Amendment is not substantially without decent material scrutiny withstand strict under the First same burdening [T]he adult access.... They allege Virgi- Amendment. also for material the Inter- cannot be said on an undue burden regulation imposes nia’s is, comply net. That efforts to with the commerce because the effect interstate in the ex- will result [Amendment] of the statute is to restrict commercial many clusion of too adults from access- states, just in all electronic materials constitutionally ing material to be sound. Virginia, for which the statute was enact- The district court also held Id. plaintiffs ed. filed this action Because violated the dor- the 1999 Amendment enforcement of 18.2-391 as before mant As the court ex- Commerce Clause. there are no facts to amended plained: govern application in this case. The its cyberspace por- allege only regulating and did how laws

plaintiffs [S]tate could much currently impose a they they nography would be affected believed “printed reproduced” busi- matter however on out-of-state greater burden printed material on the the statute “refers to matter —not providing adult nesses Second, regulating laws real- electronic material.” Id. the dis- Internet than state imposed on out-of- trict court space pornography noted when 1985 Ver- enacted, and oth- magazine publishers adult state sion was “Internet communication provid- real-space pornography third, er was not envisioned.” Id. And it Thus, an prosecution, .... to avoid ers by making change, asserted that operator comply site must adult Web Virginia legislature “presumed must be obscenity the most restrictive state with act it purpose” with and therefore “add[ed] make its content regulations if it is to entirely something different to the stat- at all.... This available on the Web ute.” Id. at 620-21. that, the court to conclude due leads 1985, § As amended in 18.2-391 makes filtering geographic current status of unlawful a commercial transaction through Internet, § 18.2-391 technology on the pornographic which material harmful the Commerce Clause. violates sold, rented, loaned, or dis- Id. at 891. The media that are played. included permanent court’s in- From the district “Any picture, pho- the 1985 statute are: against Virginia on Octo-

junction entered tography, drawing, sculpture, pic- motion 11, 2001, prohibiting enforcement of ber film, representation ture or similar visual Amendment, Virginia appealed. book, image” “[a]ny pamphlet, or magazine, printed repro- matter however II duced, recording.” or sound Va.Code Virginia contends The Commonwealth of 18.2-391(a) (1985). In reading Ann. this II, that American Booksellers first manner, in a common sense rejected challenge a facial F.2d which court seemed to have been focused district vagueness on and First to the statute “printed recognize matter” and did not grounds, precludes sec- Amendment statute, which not the breadth challenge fаcial to the extent that this ond very examples media as specific includes also on the First challenge is based an intent to cover but which also indicates acknowledges It that Amer- Amendment. seen, read, media that or all preclude II not con- ican Booksellers does examples provid- Stripped heard. sideration of the dormant Commerce ed, the transference prohibits the statute issue, preclude nor would it a later Clause juve- material harmful to pornographic applied” by persons claim filed who “as any representation “visual or through niles party not to the American Booksel- were any “printed matter however re- image,” correctly Surely, original ing computers the use of and video recorders recording.” “sound harmful by pornographers); would include child Police Uncover statutory language tape played on video displayed material Pornography Ring, Associated Child by or created electronic Press, 6, a television (reporting Feb. arrest means, camera. I re- digital as a such suspect a national and plotting “accused that common sense— submit spectfully possibly computerized por- worldwide child interpretation suggesting rather than scheme”). nography that does not any medium restricted to Second, clearly inclu- uses suggests include the electronic medium — language inoperable sive is not rendered always legislature intend- that the fall unanticipated circumstances that media, all and when added ed to include scope language. within the of the For to the list of exam- the electronic medium example, pre- the Fourteenth Amendment included, simply clarifying the ples it was any that no state make law scribes increasingly pervasive elec- statute for denying “any person” “equal protection of There is no indication that the age. tronic anticipated the laws.” Yet no one at the intended to exclude 1985 Version was time of its ratification in that all of possi- or thereafter place medium then privileges accorded to men also must Rather, defining criteria were ble. Nonetheless, be accorded to women. words, material, and sound. visual unambiguous language protection that the The district court’s observation women, included and it is so construed have envisioned Internet could not been today. This follows the basic canon of in 1985 and therefore it was legislature statutory interpretation give that we necessary to add the reference to electron- meaning, words text their natural for two reasons. ic medium is unfounded long that meaning ambiguous, so is not First, historically that apparent it is presume we that to be the intent of the pornography the distribution of legislature, though might even such intent recordings computers was al- tape historically questioned. be ready a and that at least one state problem already addressed it and legislature had Finally, the district court reasoned addressing Computer it. others were See by making an amendment Act of Pornography Exploitation and Child Virginia legislature pur- must have had (1985); Cong. Comput- 99th S. however, pose. purpose, That need not Pornography Exploitation er and Child change have been to make a substantive Hearings Act: on S. 1305 Before the Sub- expanding scope of the statute. An comm. on Justice of the Senate Juvenile equally purpose valid would been to have Comm, Judiciary, Cong. on the 99th provide clarification to a statute that would (1985) (testimony Lanning, of Kenneth V. increasingly applied to the electronic describing FBI the use of Special Agent, Indeed, preexist- medium. because of the by pedophiles to computer bulletin boards ing language, all-inclusive it is reasonable another); communicate with one 1982 Cal. to conclude that the Amendment was (amending Stat. c. at 3395 section 313 only expansion a clarification and not an by adding of the California Penal Code proscription. the statute’s “computer program” to the list of media majority accepts reasoning Yet the capable disseminating harmful matter to Cohn, children); Kiddy rejecting appli- En- of the district court D’Vera Porn and, II cability of American Booksellers Computer Age, ters United Press Interna- tional, indeed, (describing My indepen- the increas- chooses to reverse it. Dec. principle applicable tional to facial chal- permit issue does review of this dent “ ‘readily susceptible’ if to a applica- lenges that ruling rejecting join me that narrowing construction would make binding precedent. tion of constitutional, upheld.” will be [a statute] that our to me readily apparent It is Ass’n, Inc., v. Am. Virginia Booksellers II has in American Booksellers decision 383, 397, whether Vir- question on the binding force (1988) (citations omitted). L.Ed.2d 782 un- § 18.2-391 is constitutional ginia Code accordingly certified to the The Court Vir- argu- First Amendment. der the ginia Supreme question Court facial made in that first that were ments to be construed whether the statute was now made the same that are challenge are narrowly. Virginia Supreme When we case, reasons on which in this and the that the should be Court indicated reject II to Booksellers relied American narrowly to save it from invalid- construed apply here. also now arguments those Booksellers ity, Commonwealth Am. I, the chal- Booksellers In American Ass’n, Inc., 236 Va. 372 S.E.2d challenge a facial statute was lenge to the (Va.1988), Supreme 624-25 violation of the vagueness and on based holding in American Booksel- vacated our review, we In our first Amendment. First remand, I. our lers On we reconsidered in this concludеd, the district court as did I, rulings in American Booksellers ease, was unconstitutional. that authoritative construc- light Virginia’s outlets” argued that “retail Virginia When statute, it under the upheld tion of the we “readily modify could selling pornography Amendment. American Booksellers First with the comply” methods to display their II, We stated that the 882 F.3d 127-28. statute, suggest- said that the methods we per- §in 18.2-391 that no imposed burden “unduly either ed were “insufficient” purpose for commercial “display son shall I, American Booksellers burdensome.” juveniles may whereby in a manner exam- added). (emphasis at 696 We 802 F.2d materials peruse” pornographic ine and “that assertion agreed plaintiffs’ with the juveniles a minimal bur- “places harmful to provision Version] of the display [1985 represents consti- den on booksellers unreasonably restrict adult access will of the state’s tutionally permissive exercise the first amend- protected materials under argu- though Id. Even police powers.” ment,” the 1985 stating id. at language pre- was leading ment Version point from a bookseller’s sented to us of first amend- discourages the exercise view, analysis provision’s consti- in a real and substantial rights ment stated tutionality holding and our were fashion, readily subject and ... it is not they clearly apply. broadly, and now more narrowing interpretation so as to a challenge. an overbreadth withstand merely challenge a renewed Since this is grounds par- All are Id. at 696. of these argu- in which the same First Amendment court, and the district roted this case made in Ameri- ments are made as were by majority. now II, presented now can Booksellers albeit I, using me- purveyor the electronic Booksellers us review of American On dium, Booksellers holding of American however, Court observed respect to the book narrowly, binding. II is With could construed if the statute be there, we nec- that we considered medium the constitutional might thеn it survive openly could not essarily persons held that Amendment. under the First challenge harmful containing material display books standing constitu- restated the The Court market, court, par- air even The district as well as the open ties, organized agree might compelling a market has though such implicit denying juveniles por- that the interest in to sell books. We held access by nographic on materials that are harmful to requirement imposed (1) juveniles, harmful booksellers- to conceal books as described the statute— (2) “sexually nu- public large depict explicit from the at to reveal materials that only place dity, an undue sexual conduct or them to adults did sadomasochistic right “explicit on the booksellers’ to sell abuse” or that contain and de- burden excitement, constitutionally protected material. When tailed” narratives of “sexual in its full holding our is considered sexual conduct sadomasochistic abuse.” (2). 18.2-391(A)(1), breadth, apparent it becomes that it reach- Va.Code Ann. any purveyor plaintiffs’ challenge es commercial of harmful sole issue on the facial Thus, grounds materials. under American Book- based on First Amendment is II, narrowly harmful materials sellers seller of whether the 1999 Amendment is through promote Virginia’s over the Internet or other tailored to interest denying juveniles medium to conceal the harmful pornographic would have access to large at public materials from the and materials harmful to them. only light

reveal them to adults. And in Concluding that the statute was uncon- technological controls available to such stitutional, the district court did not identi- purveyors commercial on the Internet and fy any less restrictive alternative that now being used them —as demonstrated suggest would that the statute was not III, in Part sig- below—the burden is not Indeed, narrowly tailored. ap- the court nificantly imposed different from that on pears to have that concluded the statute booksellers. but, so, narrowly was tailored even I agree Virginia balancing imposed by therefore with that the the burden the stat- First against gained, Amendment issue is “settled” and ute the benefits the burden that this “outweighed” second “First Amendment facial the benefits. Such a balanc- test, however, challenge But on ing part is foreclosed.” even does not form strict-scrutiny analysis, merits under a scrutiny analysis. strict When it is ac- challenge facial fails as the first facial cepted did the State’s restriction on challenge. speech promotes compelling governmen- interest,

tal apply the test we must is Ill narrowly whether the restriction is tai- promote lored to the State’s interest. The standard for our review is well Playboy, 529 S.Ct. 1878. known. A content-based restriction constitutionally protected speech is consti- Not did the district court fail to tutional only identify under the First Amendment a less restrictive alternative if scrutiny; interest, it survives strict it promote Virginia’s compelling “must be narrowly promote compelling tailored to concluded that the alternatives available unduly Virginia Government interest.” United States v. were not burdensome. As Inc., Playboy record, Group, amply Entm’t had demonstrated recognized 146 L.Ed.2d 865 district court that credit card numbers, systems “If a less restrictive alternative identification and PIN services, purpose, age would serve the well Government’s as verification are legislature must use that alternative.” available and effective to restrict a zone of Indeed, Id. the Internet to adults. the district prosecu- criminal by the threat of with created associated “the costs court found inappropriately “chill” tion would screening de card credit implementing rights. Amendment Id. plaintiffs’ First unlikely systems are PIN and adult vices ‘market from the sites adult Web to drive analysis lies as the district court’s Even that thousаnds of The fact ideas.’ place scrutiny analysis, the outside of the strict verifica currently utilize sites adult Web the lia- misapprehended court also district as that the burden suggests systems tion bility imposed by statute— system maintaining such with sociated of an affirmative de- noting the absence de the continued consumer outweighed by efforts— compliance for reasonable fense pro these sites the content Web mand for therefore the court miscalculated PSINET, Chapman, v. 167 Inc. vide.” any “chilling” effect. The statute extent of (W.D.Va.2001). The 878, 888 F.Supp.2d of such a defense as includes the substance that because acknowledged court district establishing part proof of the State’s to material is limited Virginia statute “know- punishes persons It who violation. purpose, for a commercial displayed juve- harmful to display” materials ingly ACLU, 521 in Reno v. expressed concerns Virginia Supreme And the Court niles. 2329, 844, 865, 138 L.Ed.2d 117 S.Ct. U.S. liability authoritatively interpreted this has (1997) that the New York (recognizing 874 narrowly: v. Ginsberg constitutional held proof beyond consist of A violation must 1274, York, 20 88 S.Ct.

New 390 U.S. that the bookseller a reasonable doubt (1968), only to com “applied 195 L.Ed.2d juveniles oppor- an knowingly afforded transactions”), present were not mercial materials his tunity peruse to harmful PSINET, F.Supp.2d 167 at 888. this case. or, sufficient being aware of facts store explicitly concluded court thus The district that person on notice put to a reasonable Amend Virginia’s statute —the existed, rea- took no opportunity such on “overly burdensome ment —was prevent perusal to steps sonable sites.” Id. commercial Web by juveniles. materials such court should by the district finding Ass’n, This v. Am. Booksellers Commonwealth strict-serutiny analysis un- ended the have Inc., 372 S.E.2d 236 Va. Amendment, the conclu- with der the First (1988). Thus, under this stat- to be liable not violate the the statute did sion that to show ute, have prosecution would court the district But (1) Constitution. knowingly wеbsites that commercial conclusion, relying on opposite an reached pe- to opportunity permitted balancing test and newly (2) fabricated materials, no rea- took harmful ruse further observation its perusal when prevent such steps sonable Amendment a reason- putting of facts they were aware possibility. on notice of person affirmative defense able not include an

does commer- hardly exposes This sites Id. at 625. for commercial Web prosecution liability feared compli- to the broad incorporate such cial websites they if in fact Thus, most district court. even the ance measures. may have adult sites

responsible Web record, in the Virginia demonstrated As they will be concerns that legitimate zones could create just as booksellers in the liability subjected to criminal materials to adult limited their bookstores Virginia. State and sales of perusal restrict and could adults, can create websites PSINET, The those books F.Supp.2d at 888. in access to limited the Internet zones on implicit burden court thus held would, Yet, through pro only later, adults. No adult years five when the Su- cess, constitutionally- denied access preme Congress’ Court reviewed next at- protected speech. Ginsberg, See 390 U.S. tempt regulate obscenity Internet —the Rather, & n. mini (COPA) Child Online Protection Act —it mally steps burdensome would have to be recognized publisher that a pornograph- taken to create such adult zones and to ic materials on the target Internet could limit access to adults. certain audiences and “need take the recognized has the nexus between the simple step utilizing a medium that en- availability filtering of Internet technology target ables it to the release of its material and the maintenance of adult access into those communities.” v. Ashcroft pornographiс online materials. See Reno ACLU, 564, 583, 122 S.Ct. ACLU, 844, 876-77, 881-82, 117 521 (2002). Indeed, 152 L.Ed.2d 771 the Court 138 L.Ed.2d 874 In recognized that COPA did not “foreclose Reno, the Court credited the district an entire expression” medium of on the finding court’s that “at the time of trial Internet “only requires because it existing technology did not include placed such material be behind adult iden- effective prevent method for a sender to tification screens.” Id. at 583 n. 122 minors from obtaining access to its com Thus, time, years’ S.Ct. 1700. within five munications on the Internet without also cyber-barriers the that Justice O’Connor denying ‍​​​‌‌​‌‌​‌​​​​​‌‌​​‌‌‌‌​‌‌​​‌​‌​‌​​‌‌​‌‌‌‌​​‌​​​‍adults,” access to id. at 117 had in referred to Reno had become wide- and the Court therefore com spread and effective. mended rely the district court’s refusal “to now, unproven And technology future to save the district court in this case Act],” Decency [Communications id. at has concluded that technological mecha- 882, 117 S.Ct. 2329. by nisms exist to create adult using zones cards, credit passwords, PIN identifica- But out, as Justice pointed O’Connor “it tion, services, adult verification and web- possible to construct in cyber barriers PSINET, site self-identification methods. space and use them to screen for identity, Moreover, 167 F.Supp.2d at 887-88. Vir- making cyberspace more like the physical ginia points out what the district court and, consequently, world more amenable accepted and Supreme what the Court rec- Reno, zoning laws.” 521 at ognized in ACLU: (O’Connor, J., S.Ct. 2329 concurring in Ashcroft judgment part in dissenting In the world of web-based commercial part). 1997, however, In the context of pornography, “electronic screens” re- Justice recognized O’Connor that the nec quiring age credit card or verification essary technology was available but was So, commonplace. too, devices are are insufficiently too dispersed on the Internet “teasers,” hardcore pornography strate- to be upon purposes rеlied of the Com gically placed in such screens. front of Decency it, munications Act. As put she All pomographers commercial need to “Gateway technology is ubiquitous not do to abide Virginia law is to move cyberspace, and because without it ‘there these pre-existing “screens” so that such age verification,’ is no means of cyberspace appear screens pornographic before still largely remains unzoned-and un zonea displayed. teasers are (O’Con ble.” Id. at 117 S.Ct. 2329. nor, J., concurring judgment part Ashcroft, Accord 535 U.S. at 583 n. and dissenting part) (quoting (citing ACLU v. S.Ct. 1700 “adult identification Reno, (E.D.Pa.1996)). F.Supp. 824, alternative). screens” as feasible Internet To Virginia’s support its view the statute ov- its conclusion

To reach enforcement, Amendment, scope in the of erreaches its the First violates essentially majority Virgi- discards the that are majority propositions relies on holding nia that the stat- Court’s are record or that unsupported ute is if a “rea- not violated website takes scope determination irrelevant steps” juveniles sonable to assure that are majority example, the statute. For perusing not harmful material. The ma- way have no speakers “Internet says that jority says, juveniles from ac- preventing is no indication that the use of [TJhere Ante speech.” their cessing Internet PIN would be considered a number out, Yet, Virgi- pointed as has been step” prevent “reasonable “reason- and the district court nia demonstrated ably by juveniles. As apparent” perusal the fact that commercial websites accepted previously pointed Plaintiffs have distributing pornography using are avail- out, certainly the Commonwealth would technology effectively to create adult able agree liquor that a or tobacco store to their material. regulate access zones credit anyone sold to with a valid PSINET, at 888. See F.Supp.2d number, card without some additional majority says that 18.2-391’s also step age of the custom- to ascertain access to “attempt deny poten- minors er, taking steps reasonable to ex- was ‘effectively harmful ... will tially speech age clude from the purchase speech large prohibitive amount suppress! products. ] right to have a receive adults constitutional Ante at Virginia Yet demonstrat- 236-37. ” to address to one another.’ Ante at and and court the facts accepted ed the district Reno, 521 U.S. at (quoting cards, PINs, age that the of credit and use 2329). Yet, no there is evidence minimally are burden- verification services Virginia record that statute will today, they some that even are used any speech among suppress to operate Internet. effectively on the and the Virginia Both district adults. that thousands of adult Web fact functioning recognized that adults court currently sites utilize adult verification always the statute will have access under asso- systems suggests that the burden commercially purveyed pornographic system is maintaining ciated such a with The only question that arose materials. continued consumer de- outweighed for whether the mechanisms restrict- mand the content that these Web was too sites commer- ing provide.... [Moreover] access adults was burdensome. likely are less than non- access cial sites as adults who want to adult Web Just be sites to so burdened commercial magazines and books must enter a book- of an adult identifi- implementation age their to the store demonstrate they cation that are forced system bookseller, Virginia has demonstrated that content the Inter- withdraw their from wanting pornography from commer- adults net. the Internet must enter purveyors cial cards, through zone use of credit PSINET,

an adult Realizing at F.Supp.2d PINs, technological or other demonstrated that is in the record and that this evidence gaining access to adult gateways before .court made the conclusions district further, if Notably, did, majority statute not argues material. does that “many that exchanges occurring desperately, not reach non-commercial somewhat unwilling their provide adults e-mail chat-rooms. online, juveniles credit card number and would materials to pur- for commercial therefore visit the site. poses, not Such restric- denying without adults constitu- complete tion would also serve as a block tionally protected speech. Ginsberg, See to adults who to access adult wish material 638 & n. 88 S.Ct. 1274. And but do not own a credit card.” statute, Ante at authoritatively as construed many 236-37. But so too are adults un- by Court, Virginia Supreme provides a willing to enter an adult bookstore and ask narrowly response tailored directed at protected juveniles. for material from commercial purveyors of these harmful Moreover, we held in American materials, Booksel- directing they may not II Virginia lers that the statute imposing knowingly display such juve- materials to these burdens on adults and, is constitutional they niles if are aware that such against challenge. the First Amendment materials, perusing are such they must steps take reasonable to prevent the

Finally, majority falls back on the perusal. The State has identified the notion if operates Virgi- the statute steps take, reasonably websites can suggests, nia the statute would be ren- and the district court properly found those “powerless.” dered Ante at 238. This ef- steps unduly to be not burdensome. fect, however, legislative is a judgment that must be left to the Virginia legisla- would, therefore, I uphold Virginia Code Certainly by ture. creating adult zones 18.2-391(A) § against the First Amend- for commercial websites that distribute challenge ment made this case. pornography, legislаtion reduces the range quantity of materials accessible IV juveniles. It has been often stated that Finally, Virginia contends that the dis- a legislature need solve the entire trict court in finding erred problem; it is steps free take to solve violates the dormant Commerce Clause. See, part problem. e.g., New The district court held that Dukes, 297, 303, Orleans v. unduly burdens interstate com- 2513,

S.Ct. 49 L.Ed.2d 511 by placing merce restrictions on electronic bottom, just

At Virginia as the commercial materials in all states. The already has upheld been for constitutional- court stated: ity argued when point from the of a book- obscenity State regulations are not in- seller, impliedly who was required to un- validated under the Commerce Clause dertake minimally steps burdensome they impose compliance because costs on deny juveniles access harmful materials businesses located outside their state’s preserving adults, while access for a facial borders. review now leads to the same conclusion Nevertheless, cy- state laws regulating

when argued point from the of view of a berspace pornography currently impose seller from an Internet website. greater a much burden on out-of-state

Virginia justifiably is concerned with the providing businesses adult material on open and display unrestricted of porno- the Internet than state regulating laws graphic juveniles, materials harmful to real-space pornography.... avoid [T]o it concededly has a compelling prosecution, interest an operator adult site Web imposing display restrictions on of those comply must with the most restrictive materials. The § 1985 Version of obscenity 18.2- state regulations if it is to Amendment, as well as the 1999 im- make its content available on the Web at poses display contrast, restrictions on the of such all. In purveyors of real-space

255 Pike, at comply choose to with tive local benefits.” U.S. can pornography only those states 90 S.Ct. 844. regulations the affirmatively distribute. they which district own The court’s conclusions that ... to conclude This the court leads the technology ap- based on demonstrated violates the Commerce section 18.2-391 question readily. to resolve this It pear Clause. ne- compliance found measures (footnote PSINET, at F.Supp.2d by § “overly are not cessitated 18.2-391 omitted). sites,” on burdensome commercial Web facially not discrim- PSINET, that do For statutes F.Supp.2d and “are commerce, the Su- against interstate inate unlikely to a substantial effect on have adopted analysis Court has preme operators,” id. at commercial Web site regulation State determining whether specific on First burden com- unconstitutionally burdens interstate rights that the district court Amendment merce: Virginia’s overwhelm determined would regulates even-hand- was the denial of adult compelling the statute interest

Where pub- § edly legitimate local pornography, effectuate access 18.2-391’s interest, interstate and its effects on lic burden on interstate commerce. putative incidental, it will be are commerce Thus, agree I has a com- on imposed upheld unless burden pelling regulating pornog- State interest clearly is excessive such commerce juris- harmful within raphy If putative local benefits. relation to limits sovereignty, dictional of its found, then purpose is legitimate local impose would on burden degree. question becomes one I be minimal. purveyors Internet would that will And the burden extent with that: agree Virginia’s also observation on the depend will of course be tolerated operators may purvey por- still Website involved, and nature of the local interest seeking material nography. Adults such promoted as well on whether it could readily still ob- from Internet impact activi- with lesser interstate All law [Virginia] requires tain it. ties. including the harmful materials — Church, Inc., Pike v. Bruce placed free materials —be behind (1970) 25 L.Ed.2d 174 use, already in rather screens electronic omit-ted) (citation Oregon (quoted it. posted “teasers” front of than Dep’t Quality Sys., Inc. v. Envtl. Waste Accordingly, uphold Virginia’s I would 93, 99, Oregon, made challenge under the facial (1994)). L.Ed.2d 13 128 to dormant Commerce pursuant in dispute There no this case is Clause. in- public Virginia “legitimate has a local juveniles denying pornography in terest” V In- material harmful to them. deemed deed, attempt has a staunch Virginia as well the district made parties, as denying in court, compelling its interest agree compelling promote has pornographic harmful harm- access to regulating pornography interest in minimiz- re- while at the same time juveniles. only question ful to materials regulation on adults. imposed ing the burdens of its maining is whether burden tailoring began is its statute § interstate commerce It 18.2-391 on Supreme Court’s decision puta- after “clearly excessive relation to Ginsberg. And when it being amended this stat- used with minimal burden on e-com- 1985, narrowly merce, ute in it tailored the statute it is difficult to conceive how these Amendment, comport with the First purveyors web-site should complain when we concluded in American II. Virginia suggests Booksellers these mechanisms Finally, when amended the statute in employed satisfy § could be 18.2-391. clarify application 1999 to its Conceptually, the Inter- pornographic today websites net, Virginia operate made clear that it was re- adult “e-bookstores” into which stricting adults, the statute to commercial they efforts invite all they are control- purvey pornography, ling and then access to their adult cyber- zones of purveyors knowingly who space. violated the law hardly This is different from the or who failed to take reasonable steps “real-space” circumstances of a bookseller when aware that the law being was violat- selling pornography. provided

ed. It also immunity to Internet I would reverse judgment Service Providers. See 2000 Va. Acts ch. district court uphold the constitution- (now codified in Va.Code Ann. ality of the statute. I respectful- therefore 18.2-391(A)(2)). ly dissent. If narrowly tailored statute does not scrutiny,

survive strict then the conclusion

must be drawn that States have no alter-

native but to regulate abandon efforts to

Internet-based pornography deemed juveniles. Yet,

harmful to Supreme prepared

Court is not to accept this con- clusion, nor Virginia. To contrary, America, UNITED STATES of Court has observed that with Plaintiff-Appellee, the appropriate technology, zones of adult material can be created on the Internet as Anthony ROUSE, K. Defendant- See, an appropriate form of regulation. Appellant. e.g., Ashcroft, at U.S. 583 & n. 1700; ACLU, Reno v. No. 02-4956. 886-91, (O’Connor, J„ 117 S.Ct. 2329 con- United Appeals, States Court of curring judgment in the part and dis- Fourth Circuit. senting part). Argued: Commercial websites distributing por- Jan. 2004. nography on the Internet now make use of Decided: March technology that can applied to comport with Virginia’s statutory requirements.

They display free clips of their material as

“teasers” to entice the viewer to enter

their adult zone purchase a complete

viewing of this material. To enter the

zone, however, the viewer provide must

credit and adult Moreover, verification.

Virginia demonstrated and the district accepted,

court the fact that age verifica-

tion measures are now available and are case. But notes lers any recording.” “sound produced,” claim, applied” that this case is not an “as Virginia legisla- focus of the The obvious challenge. facial but second eyes on all media that reach the ture was Thus, juveniles. when the Vir- rejected po- or ears of Virginia’s The district court First, sition, legislature example added as another ginia three reasons. citing media, medium ‍​​​‌‌​‌‌​‌​​​​​‌‌​​‌‌‌‌​‌‌​​‌​‌​‌​​‌‌​‌‌‌‌​​‌​​​‍tells a of those electronic court observed that “common sense “containing or “containing image” that the initial catch- reader of the statute words,” to the adding substance not cover was phrases all of the statute do PSINet, any “visual language intended previous Inc. v. Internet materials.” any “printed representation image,” F.Supp.2d Chapman, (W.D.Va.2000). reproduced,” and out that matter however pointed The court

Case Details

Case Name: PSINet, Inc. v. Chapman

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 25, 2004

Citation: 362 F.3d 227

Docket Number: 01-2352

Court Abbreviation: 4th Cir.