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AMERICAN CIVIL LIBERTIES UNION v. RENO
February 1, 1999
AMERICAN CIVIL LIBERTIES UNION, ET AL.
JANET RENO, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES.
The opinion of the court was delivered by: Reed, District Judge.
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
(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
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
(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
(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
(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
II. Arguments of the Parties
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
"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
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).
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 ...