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
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 taken from the Joint Stipulation to provide
A. The Internet and the World Wide Web
0. The Internet is a giant network that interconnects innumerable
smaller groups of linked computer networks: a network of
networks. (Joint Exhibit 3 ¶ 1).
1. The nature of the Internet is such that it is very difficult,
if not impossible, to determine its size at a given moment.
However, it is indisputable that the Internet has experienced
extraordinary growth in the past few years. In 1981, fewer
than 300 computers were linked to the Internet, and by 1989,
the number stood at fewer than 90,000 computers. By 1993,
however, over 1,000,000 computers were linked. The number of
host computers has more than tripled from approximately 9.4
million hosts in January 1996 to more than 36.7 million hosts
in July 1998. Approximately 70.2 million
people of all ages use the Internet in the United States
alone. (Joint Exhibit 3 ¶ 3).
2. Some of the computers and computer networks that make up the
Internet are owned by governmental and public institutions;
some are owned by non-profit organizations; and some are
privately owned. The resulting whole is a decentralized,
global medium of communications — or "cyberspace" — that
links individuals, institutions, corporations, and governments
around the world. The Internet is an international system.
This communications medium allows any of the literally tens of
millions of people with access to the Internet to exchange
information. These communications can occur almost
instantaneously, and can be directed either to specific
individuals, to a broader group of individuals interested in
a particular subject, or to the world as a whole. (Joint
Exhibit 3 ¶ 4).
3. The content on the Internet is as diverse as human thought.
The Internet provides an easy and inexpensive way for a
speaker to reach a large audience, potentially of millions.
The start-up and operating costs entailed by communication on
the Internet often are significantly lower than those
associated with use of other forms of mass communication, such
as television, radio, newspapers, and magazines. Creation of
a Web site can range in cost from a thousand to tens of
thousands of dollars, with monthly operating costs depending
on one's goals and the Web site's traffic. Commercial online
services such as America Online allow subscribers to create a
limited number of Web pages as a part of their subscription to
AOL services. Any Internet user can communicate by posting a
message to one of the thousands of available newsgroups and
bulletin boards or by creating one of their own or by engaging
in an online "chat", and thereby potentially reach an audience
worldwide that shares an interest in a particular topic.
(Joint Exhibit 3 ¶ 12).
4. Individuals can access the Internet through commercial and
non-commercial "Internet service providers" of ISPs that
typically offer modem access to a computer or computer
network linked to the Internet. Many such providers are
commercial entities offering Internet access for a monthly or
hourly fee. Some Internet service providers, however, are
non-profit organizations that offer free or very low cost
access to the Internet. (Joint Exhibit 3 ¶ 18).
5. Another common way that individuals can access the Internet is
through one of the major national commercial "online services"
such as America Online or the Microsoft Network. These online
services offer nationwide computer networks (so that
subscribers can dial-in to a local telephone number), and the
services provide extensive and well organized content within
their own proprietary computer networks. In addition to
allowing access to the extensive content available within each
online service, the services also allow subscribers to link to
the much larger resources of the Internet. Full access to the
online service (including access to the Internet) can be
obtained for modest monthly or hourly fees. The major
commercial online services have millions of individual
subscribers across the United States. (Joint Exhibit 3 ¶ 19).
6. In addition to ISPs, individuals may be able to access the
Internet through schools, employers, libraries, and community
networks. (Joint Exhibit 3 ¶¶ 14-17).
7. Once one has access to the Internet, there are a wide variety
of different methods of communication and information exchange
over the network, utilizing a number of different Internet
"protocols." These many methods of communication and
information retrieval are constantly evolving and are
therefore difficult to categorize concisely. The most common
methods of communication on the Internet (as well as within
the major online services) can be roughly grouped into six
(1) one-to-one messaging (such as "e-mail"),
(2) one-to-many messaging (such as "list-serv" or
(3) distributed message databases (such as "USENET
(4) real time communication (such as
"Internet Relay Chat"),
(5) real time remote computer utilization (such as
(6) remote information retrieval (such as
"ftp," "gopher," and the "World Wide Web").
Most of these methods of communication can be used
to transmit text, data, computer programs, sound,
visual images (i.e., pictures), and moving video
images. (Joint Exhibit 3 ¶ 22).
8. When persons communicate solely via e-mail, they utilize a
protocol known as SMTP (for simple mail transfer protocol).
Similarly, persons may chat using the Internet Relay Chat
protocol, or may post messages on "Usenet" news groups using
a protocol referred to as NNTP. The communications listed
above in categories (1) through (5) do not involve
communicating by means of "HTTP" or hypertext transfer
protocol, which is the protocol effected by COPA. (Joint
Exhibit 3 ¶ 23).
9. Web-based chat rooms, e-mail, and newsgroups utilizing HTTP or
hyper-text transfer protocol are interactive forms of
communication, providing the user with the opportunity both to
speak and to listen. (Joint Exhibit 3 ¶ 24).
10. The primary method of remote information retrieval today is
the World Wide Web. (Joint Exhibit 3 ¶ 25).
11. The World Wide Web, or the "Web," uses a "hypertext"
formatting language called hypertext markup language
(HTML), and programs that "browse" the Web can display HTML
documents containing text, images, sound, animation and
moving video stored in many other formats. Any HTML document
can include links to other types of information or resources,
so that while viewing an HTML document that, for example,
describes resources available on the Internet, an individual
can "click" using a computer mouse on the description of the
resource and be immediately connected to the resource itself.
Such "hyperlinks" allow information to be accessed and
organized in very flexible ways, and allow individuals to
locate and efficiently view related information even if the
information is stored on numerous computers all around the
world. (Joint Exhibit 3 ¶ 26).
12. The World Wide Web was created to serve as the platform for
a global, online store of knowledge, containing information
from a diversity of sources and accessible to Internet users
around the world. Although information on the Web is
contained in individual computers, the fact that each of
these computers is connected to the Internet through World
Wide Web protocols allows all of the information to become
part of a single body of knowledge. (Joint Exhibit 3 ¶
13. Many organizations now have "home pages" on the Web. These
are documents that provide a set of links designed to
represent the organization, and through links from the home
page, guide the user directly or indirectly to information
about or relevant to that organization. (Joint Exhibit
3 ¶ 30).
14. Links may also take the user from the original Web site to
another Web site on another computer connected to the
Internet. The ability to link from one computer to another,
from one document to another across the Internet regardless
of its status or physical location, is what makes the Web
unique. (Joint Exhibit 3 ¶ 31).
15. The World Wide Web exists fundamentally as a platform through
which people and organizations can communicate through shared
information. When information is made available, it is said
to be "published" on the Web. Publishing on the Web simply
requires that the "publisher" has a computer connected to the
Internet and that the computer is running Web server
software. The computer can be as simple as a small personal
computer costing less than
$1500 dollars or as complex as a multi-million dollar
mainframe computer. Many Web publishers choose instead to
lease disk storage space from someone else who has the
necessary computer facilities, eliminating the need for
actually owning any equipment oneself. (Joint Exhibit
3 ¶ 32).
16. A variety of systems have developed that allow users of the
Web to search for particular information among all of the
public sites that are part of the Web. Services such as
Yahoo, Excite!, Altavista, Webcrawler, Infoseek, and Lycos
are all services known as "search engines" or directories
that allow users to search for Web sites that contain certain
categories of information, or to search for key words.
17. No single organization controls any membership in the Web,
nor is there any single centralized point from which
individual Web sites or services can be blocked from the Web.
From a user's perspective, it may appear to be a single,
integrated system, but in reality it has no centralized
control point. (Joint Exhibit 3 ¶ 37).
18. Once a provider posts its content on the Internet and chooses
to make it available to all, it generally cannot prevent that
content from entering any geographic community. Unlike the
newspaper, broadcast station, or cable system, Internet
technology gives a speaker a potential worldwide audience.
Because the Internet is a network of networks, any network
connected to the Internet has the capacity to send and
receive information to any other network. (Joint Exhibit
3 ¶ 41).
19. Sexually explicit material exists on the Internet. Such
material includes text, pictures, audio and video images,
extends from the modestly titillating to the hardest core.
Some Web sites display for free what appear to be still or
moving images of a sexually explicit nature. Sexually
explicit materials exist on Web pages and on Web-based and
non-Web based interactive fora. It exists on sites based in
the United States and sites based outside the United States.
(Joint Exhibit 3 ¶ 43).
20. There was no evidence in the record regarding the number of
Web sites which are posted within the United States. However,
based on a statistic from July of 1998 on the percentage of
Internet hosts that originate in the United States, Dr. Donna
Hoffman estimated that 60% of all content originates in the
United States and 40% originates outside the United States.
B. The Speech Provided by the Plaintiffs