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AMERICAN CIVIL LIBERTIES UNION v. RENO

February 1, 1999

AMERICAN CIVIL LIBERTIES UNION, ET AL.
v.
JANET RENO, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES.



The opinion of the court was delivered by: Reed, District Judge.

    MEMORANDUM

The First Amendment to the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech." Although there is no complete consensus on the issue, most courts and commentators theorize that the importance of protecting freedom of speech is to foster the marketplace of ideas. If speech, even unconventional speech that some find lacking in substance or offensive, is allowed to compete unrestricted in the marketplace of ideas, truth will be discovered. Indeed, the First Amendment was designed to prevent the majority, through acts of Congress, from silencing those who would express unpopular or unconventional views.

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

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

Intending to address the problem of children's access to these teasers, Congress passed the Child Online Protection Act ("COPA"), which was to go into effect on November 29, 1998. On October 22, 1998, the plaintiffs, including, among others, Web site operators and content providers, filed this lawsuit challenging the constitutionality of COPA under the First and Fifth Amendments and seeking injunctive relief from its enforcement. Two diametric interests — the constitutional right of freedom of speech and the interest of Congress, and indeed society, in protecting children from harmful materials — are in tension in this lawsuit.

This is not the first attempt of Congress to regulate content on the Internet. Congress passed the Communications Decency Act of 1996 ("CDA") which purported to regulate the access of minors to "indecent" and "patently offensive" speech on the Internet. The CDA was struck down by the Supreme Court in Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) ("Reno I") as violative of the First Amendment. COPA represents congressional efforts to remedy the constitutional defects in the CDA.

Plaintiffs attack COPA on several grounds: (1) that it is invalid on its face and as applied to them under the First Amendment for burdening speech that is constitutionally protected for adults, (2) that it is invalid on its face for violating the First Amendment rights of minors, and (3) that it is unconstitutionally vague under the First and Fifth Amendments. The parties presented evidence and argument on the motion of plaintiffs for a temporary restraining order on November 19, 1998. This Court entered a temporary restraining order on November 20, 1998, enjoining the enforcement of COPA until December 4, 1998. (Document Nos. 29 and 30). The defendant agreed to extend the duration of the TRO through February 1, 1999. (Document No. 34). The parties conducted accelerated discovery thereafter. While the parties and the Court considered consolidating the preliminary injunction hearing with a trial on the merits, the Court, upon due consideration of the arguments of the parties, ultimately decided that it would proceed only on the motion for preliminary injunction. (Document No. 39). There necessarily remains a period for completion of discovery and preparation before a trial on the merits.

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

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

I. The Child Online Protection Act

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

    (1) PROHIBITED CONDUCT.-Whoever knowingly and with
    knowledge of the character of the material, in
    interstate or foreign commerce by means of the
    World Wide Web, makes any communication for
    commercial purposes that is available to any minor
    and that includes any material that is harmful to
    minors shall be fined not more than $50,000,
    imprisoned not more than 6 months, or both.
    (2) INTENTIONAL VIOLATIONS.-In addition to the
    penalties under paragraph (1), whoever
    intentionally violates such paragraph shall be
    subject to a fine of not more than $50,000 for each
    violation. For purposes of this paragraph, each day
    of violation shall constitute a separate violation.
    (3) CIVIL PENALTY.-In addition to the penalties
    under paragraphs (1) and (2), whoever violates
    paragraph (1) shall be subject to a civil penalty
    of not more than $50,000 for each violation. For
    purposes of this paragraph, each day of violation
    shall constitute a separate violation.

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

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

    communications for commercial purposes that include
    material that is harmful to minors, only if the
    person knowingly causes the material that is
    harmful to minors to be posted on the World Wide
    Web or knowingly solicits such material to be
    posted on the World Wide Web.

47 U.S.C. § 231(e)(2)(B).

Congress defined material that is harmful to minors as:

    any communication, picture, image, graphic image
    file, article, recording, writing, or other matter
    of any kind that is obscene or that-
    (A) the average person, applying contemporary
    community standards, would find, taking the
    material as a whole and with respect to minors, is
    designed to appeal to, or is designed to pander to,
    the prurient interest;
    (B) depicts, describes, or represents, in a manner
    patently offensive with respect to minors, an
    actual or simulated sexual act or sexual contact,
    an actual or simulated normal or perverted sexual
    act, or a lewd exhibition of the genitals or
    post-pubescent female breast; and
    (C) taken as a whole, lacks serious literary,
    artistic, political, or scientific value for
    minors.

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

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

(c) AFFIRMATIVE DEFENSE.-

    (1) DEFENSE.-It is an affirmative defense to
    prosecution under this section that the defendant,
    in good faith, has restricted access by minors to
    material that is harmful to minors-
    (A) by requiring use of a credit card, debit
    account, adult access code, or adult personal
    identification number;
    (B) by accepting a digital certificate that
    verifies age; or
    (C) by any other reasonable measures that are
    feasible under available technology.

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

(d) PRIVACY PROTECTION REQUIREMENTS.-

    (1) DISCLOSURE OF INFORMATION LIMITED.-A person
    making a communication described in subsection (a)-
    (A) shall not disclose any information collected
    for the purposes of restricting access to such
    communications to individuals 17 years of age or
    older without the prior written or electronic
    consent of-
      (i) the individual concerned, if the individual
      is an adult; or
      (ii) the individual's parent or guardian, if the
      individual is under 17 years of age; and
    (B) shall take such actions as are necessary to
    prevent unauthorized access to such information by
    a person other than the person making such
    communication and the recipient of such
    communication.
    (2) EXCEPTIONS.-A person making a communication
    described in subsection (a) may disclose such
    information if the disclosure is-
    (A) necessary to make the communication or conduct
    a legitimate business activity related to making
    the communication; or
    (B) made pursuant to a court order authorizing such
    disclosure.

II. Arguments of the Parties

The arguments of the parties are plentiful and will be only summarized here for purposes of the motion for a preliminary injunction. Plaintiffs argue that COPA is unconstitutional on its face and as applied to them because the regulation of speech that is "harmful to minors" burdens or threatens a large amount of speech that is protected as to adults.*fn1 According to the plaintiffs, the fact that COPA is vague, overbroad, and a direct ban on speech that provides only affirmative defenses to prosecution contributes to the burden COPA places on speech. The plaintiffs argue that the affirmative defenses provided in COPA do not alleviate the burden on speech because their implementation imposes an economic and technological burden on speakers which results in loss of anonymity to users and consequently loss of users to its Web sites. The plaintiffs contend that the defendant cannot justify the burden on speech by showing that COPA is narrowly tailored to a compelling government interest or the least restrictive means to accomplish its ends. Alternatively, plaintiffs frame their facial attack to the statute as an overbreadth challenge, arguing that speech will be chilled on the Web because the statute covers more speech than it was intended to cover, even if it can be constitutionally applied to a narrow class of speakers. The plaintiffs also challenge COPA as being unconstitutionally vague under the First and Fifth Amendments and facially unconstitutional as to speech protected for minors.

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

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

III. Resolution of Defendant's Motion to Dismiss

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

"The standard-encapsulated in the phrase `credible threat of prosecution'-is quite forgiving." New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 14 (1st Cir. 1996) ("NHRLPAC"); see also Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). After analyzing both Supreme Court precedent and federal appellate court decisions, the NHRLPAC Court concluded that "the preceding cases make clear that when dealing with pre-enforcement challenges to recently enacted (or, at least non-moribund) statutes that facially restrict expressive activity by the class to which the plaintiff belongs, the court will assume a credible threat of prosecution in the absence of compelling contrary evidence." 99 F.3d at 15; see also Babbitt, 442 U.S. at 301-02, 99 S.Ct. 2301; Doe, 410 U.S. at 188, 93 S.Ct. 739; American Booksellers, 484 U.S. at 392-93, 108 S.Ct. 636; Chamber of Commerce v. FEC, 69 F.3d 600, 603-04 (D.C.Cir. 1995) (even though no present danger of enforcement existed, a credible threat of prosecution existed because nothing would "prevent the Commission from enforcing its rule at any time with, perhaps, another change of mind of one of the Commissioners"); Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir. 1987) (holding that when a state statute "chills the exercise of First Amendment rights, standing exists even though the official charged with enforcement responsibilities has not taken any enforcement action against the plaintiffs and does not presently intend to take any such action").

The gravamen of the motion of defendant is that plaintiffs' fear of prosecution is wholly speculative and, therefore, not a credible threat sufficient to confer standing. The defendant argues that the plaintiffs lack standing because the material on their Web site is not "harmful to minors," and the plaintiffs are not "engaged in the business" of distributing harmful to minors materials under the statute. The defendant contends that the Court should narrowly construe COPA to apply to those engaged in the business of commercial pornography, which does not include any of the plaintiffs.

There is nothing in the text of the COPA, however, that limits its applicability to so-called commercial pornographers only; indeed, the text of COPA imposes liability on a speaker who knowingly makes any communication for commercial purposes "that includes any material that is harmful to minors," and defines a speaker that is engaged in the business as one who makes a communication "that includes any material that is harmful to minors . . . as a regular course of such person's trade or business (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income)." (emphasis added). Because COPA applies to communications which include, but are not necessarily wholly comprised of material that is harmful to minors, it logically follows that it would apply to any Web site that contains only some harmful to minors material.

Based on the allegations of the complaint and the evidence and testimony presented to the Court, it appears that all of the individual plaintiffs except Electronic Privacy Information Center have some content on their Web sites or post some content on other sites that is sexual in nature.*fn2 All of the organizational plaintiffs have members who have some content on their Web sites or who post some content on other sites that is sexual in nature.*fn3 The plaintiffs contend that such sexual material could be considered "harmful to minors" by some communities.

The plaintiffs offer an interpretation of the statute which is not unreasonable, and if their interpretation of COPA's definition of "harmful to minors" and its application to their content is correct, they could potentially face prosecution for that content on their Web sites. Vermont Right to Life Comm. Inc. v. Sorrell, 19 F. Supp.2d 204, 210 (D.Vt. 1998) (plaintiffs had standing to challenge campaign finance statute, even though State argued that the plaintiffs were and had been complying with disclosure requirements and that internal group mailings or an isolated distribution of flyers at a county fair are "a far cry from the mass media activities contemplated by the legislature" because the statute on its face could be applied to the activities of the plaintiffs). Moreover, in the First Amendment context, courts recognize a that litigants "are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." American Booksellers, 484 U.S. at 393, 108 S.Ct. 636 (internal quotation and citation omitted). This Court concludes that the plaintiffs have articulated a credible threat of prosecution or shown that they will imminently suffer an injury sufficient to establish their standing to bring this lawsuit. Accordingly, the motion to dismiss will be denied.

IV. Standard for a Preliminary Injunction

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

V. Findings of Fact

Based on all the evidence admitted at the preliminary injunction hearing, the Court makes the following findings of fact.*fn4

The parties submitted a Joint Stipulation of Uncontested Facts at the preliminary injunction hearing. (Joint Exhibit 3). Findings of fact numbered 1 through 20 and other findings as indicated are ...


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