B. COPA, No Different Than The CDA, Is Void On Its Face.

There are essentially two substantive differences between COPA and the CDA: the standard for determining speech covered by the law (COPA is directed to speech "harmful to minors," while the CDA was directed to "indecent" and "patently offensive" speech); and the Internet speakers and fora at which the law is directed (the CDA applied to all manner of Internet speech, wherever originating, while COPA is limited to speech for "commercial purposes" communicated on the Web). These distinctions do not save COPA from the same fatal infirmity as the CDA: in the interest of restricting minors’ access to certain speech, it suppresses adult access to a potentially significant body of constitutionally-protected materials.

The parties here disagree about the extent to which the differences between the CDA and COPA actually narrow the scope of the latter statute. The Government argues for a narrower interpretation than the plaintiffs. It may be that this and other courts will ultimately adopt as definitive a very narrow construction, in view of the statute’s text and legislative history and the direct impact of this law on the exercise of First Amendment rights. But even if that were to occur, COPA would still be unconstitutional, because, like the CDA, it restricts the offer of, and adult access to, constitutionally-protected speech, when there are far more effective and less restrictive ways to protect children.

At present, of course, no definitive narrowing construction has been adopted by any court. Indeed, even were this Court to narrowly construe the statute, such an interpretation would not be binding on other courts or on prosecutors around the country, leaving amici legitimately concerned that COPA may be applied in a manner that sweeps far more broadly than the government here suggests. These concerns are heightened by the fact that the Department of Justice has itself previously adopted a conflicting interpretation. Thus, while it argues that COPA’s "harmful to minors" standard is clear and unambiguous and covers only such speech as is lacking in value to the oldest minor, here a sixteen-year old (see Gov. Motion to Dismiss at 16; Gov. TRO Mem. at 27), this assertion is directly at odds with the Department of Justice’s pre-enactment appraisal of the "harmful to minors" standard as "[a]mong the more confusing or troubling ambiguities" in the statute. DOJ Ltr. at 4-6 (listing a series of interpretive issues viewed by the Government as constitutionally-problematic). [ 2 ]

Similarly, the government now asserts that the "commercial purposes" requirement of COPA is so narrow in scope as to be applicable solely to commercial pornographers. See Gov. Motion to Dismiss at 33-51. But again, the government’s interpretation is far from clear; indeed, it is once more inconsistent with the Department of Justice’s pre-enactment appraisal of the language as one of the more "confusing or troubling ambiguities" in the statute. See DOJ Ltr. at 6.

That the Department of Justice itself could, in so short a space of time, so radically alter its interpretations of the law gives amici concern that, in the hands of the nearly one hundred United States Attorneys across the nation, this law will be susceptible to widely-varying interpretation. As Judge Sloviter made clear in CDA, "the First Amendment should not be interpreted to entrust the protection it affords to the judgment of prosecutors. Prosecutors come and go. Even federal judges are limited to life tenure. The First Amendment remains to give protection to future generations as well." CDA, 929 F. Supp. at 857.

First, would-be recipients of information will be deterred by pre-access screening requirements. Numerous surveys have documented Web users' overwhelming concern with privacy. [ 3 ] It is the experience of many amici and the Internet industry in general that many Web users will leave a site if required to register. Responding to this concern, the commercial entities that comprise many of amici's constituents have in recent years enhanced and refined their models for doing business on the Web, and the model that is becoming prevalent is the advertiser-supported site that can be accessed by users free of charge. While most sites devoted exclusively to "pornography" do require credit cards or adult verification, advertiser-supported sites are an important part of the array of options available for those seeking a more diverse array of content.

Were advertiser-supported Web sites to employ the adult verification schemes required by COPA, they would likely alienate many users. By effectively forcing users of the Web to register with the sites they choose to access, implementation of the affirmative defenses will require individuals to disclose personal information (e.g., name, address, social security number, credit card) to a third party prior to being afforded access to constitutionally-protected speech. Reliance on such systems will create records of individuals' First Amendment activities — records that will be available for use and misuse regardless of statutory provisions seeking to protect them. Conditioning adults' access to constitutionally-protected speech on the disclosure of one’s identity raises troubling First Amendment and privacy issues. The defenses pose a Faustian choice to individuals seeking access to information — protect privacy and forgo access to information, or exercise First Amendment freedoms and forgo privacy. See CDA, 929 F. Supp. at 847 ("adult users, particularly casual Web browsers, would be discouraged from retrieving information that required use of a credit card or password").

As the Third Circuit concluded in holding unconstitutional a law requiring adults to obtain access codes or other identification numbers in order to place a call to a telephone message service:

Fabulous Assocs., Inc. v. Pennsylvania Pub. Util. Comm’n, 896 F.2d 780, 785-86 (3d Cir. 1990) (citations omitted). [ 4 ]

Finally, in addition to the burden on individual privacy, such a requirement impermissibly prejudices users of the Web who lack credit cards. See CDA, 929 F. Supp. at 846 ("Imposition of a credit card requirement would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material.").

B. The Burden on Speakers

The burden is equally severe if viewed from the perspective of the operators of Web sites. As an initial matter, the affirmative defenses provide little comfort in that they do not immunize speakers from prosecution under the Act, but only provide affirmative defenses — on which the speaker will bear the burden of proof — to be asserted following prosecution. As such, they are unlikely to curb the Act's severe chilling effect. See Speiser v. Randall, 357 U.S. 513, 526 (1958) ("The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone . . .."); CDA, 929 F. Supp. at 856 ("Criminal prosecution, which carries with it the risk of public obloquy as well as the expense of court preparation and attorneys’ fees, could itself cause incalculable harm. . . . A successful defense to a criminal prosecution would be small solace indeed.").

Moreover, compliance with the affirmative defenses will result in the stigmatization of speech by forcing Web sites to create "adults only" zones, which are widely associated with pornographic materials. See H.R. Rep. No. 105-775, at 26 (1998) ("Credit card verification is commonly used today in both the dial-a-porn and Internet context and it should be easy to use and implement for commercial entities that sell pornography on the Web."). Indeed, as the government's own expert makes clear, the adult-check system advocated by the government is used in connection with pornographic Web sites. See Report of Laith Alsarraf at 9 ("Adult Check is used mostly by adult entertainment Web sites, which often contain sexually explicit materials that may be unsuitable for minors."). The affirmative defenses thus essentially require Internet purveyors of speech for "commercial purposes" whose sites contain some degree of sexually-frank content to create "adults-only" zones, thereby stigmatizing the speech by equating it with pornography. See Shea v. Reno, 930 F. Supp. 916, 943 (S.D.N.Y. 1996)(finding it burdensome for commercial and non-commercial content providers of non-pornographic content, as well as users wishing to access such material, to associate with adult verification services, which are identified with pornographic materials and users of same), aff'd, 117 S. Ct. 2501 (1997). [ 5 ]

Finally, Web sites, particularly many created and maintained by amici, are increasingly employing interactive technology, which permits visitors to communicate with one another in discussion groups and chat rooms, as well as by electronic mail. To the extent that the law applies to these features of Web sites, it causes additional burdens. While the employment of interactive technology greatly enhances the First Amendment value of the Internet by permitting listeners to seamlessly transform into speakers and speakers into listeners, implementation of one or more of the verification schemes envisioned by the Government will bring such technological strides to a halt.

For one, employment of verification schemes in interactive environments such as chat rooms will destroy the promise of such media of communication by fundamentally interfering with the spontaneity and flow of dialogue that occurs within them. Further, those who sponsor such fora on their Web sites (as do many of the entities represented by amici), faced with the costly and difficult prospect of monitoring the speech occurring on them and the concomitant risk of prosecution under the Act for allowing ill-defined "harmful to minors" speech to transpire, will necessarily think twice about offering such fora.

These profound shortcomings of COPA’s affirmative defenses leave amici's speech sponsors, representative of many other Internet speakers, with two equally untenable alternatives: (1) offer speech that is unquestionably constitutionally protected as to adults but which may be construed as "harmful to minors," and thereby risk criminal prosecution and civil penalties under the COPA; or (2) suppress such speech by self-censorship, thereby denying adults access to constitutionally-protected material. Requiring amici’s constituents to face this dilemma is violative of fundamental First Amendment principles.

In striking down the CDA, this Court reviewed and relied upon the rapid development of a variety of technologies that enable parents and others to control minors’ access to material deemed to be inappropriate for them. As the Supreme Court noted, "the evidence indicates that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material that parents may believe is inappropriate for their children will soon be available." CDA, 117 S. Ct. at 2336. The technological means for parental control anticipated by the Supreme Court have in fact been realized and, indeed, continue to be refined at a rapid rate. As of September 1998, AT&T Labs Research had identified more than thirty-five products enabling parents to control minors' access to material on the Internet. [ 6 ] An understanding of the scope and diversity of these technologies makes plain the unconstitutionality of COPA.

As detailed below, parents or guardians desiring to shield minors from material on the Internet have available to them a wide variety of options, based on, among other things, the level of control sought to be exercised and the types of content sought to be restricted. User-control options include (but are by no means limited to):

These and many other user-control options provide effective methods by which to insulate children from content parents may deem inappropriate. Moreover, these user-control tools are widely available across the entire United States. A number of amici, among other Internet-related companies, have joined together to promote the nationwide availability of these tools, and have formed "America Links Up," a forum through which parents and others can obtain information in order to ascertain which user-control tools best suit their individual needs. [ 14 ]

These efforts have proven successful. Today, each of the major Internet and online services providers make available filtering technology at minimum cost. [ 15 ] Indeed, more than fourteen million Internet-connected households currently enjoy access to filtering capability through America Online alone. Moreover, several leading manufacturers of personal computers bundle filtering software with their computers. [ 16 ] Indeed, under a provision of COPA not challenged here, Internet service providers are obligated to inform users of the availability of blocking and filtering tools. Thus, user-based controls now provide parents and guardians effective and affordable means for supervising minors’ access to material on the Internet.

B.User-Based Controls Provide More Narrowly Tailored Means of Furthering The Government’s Purported Interest in Enacting COPA.

As compared to the content-based restrictions on speech imposed by COPA, user-based control tools, along with public education on Internet use, provide far more narrowly tailored means of furthering the government's asserted interest in protecting children from assertedly harmful materials on the Internet. While protecting minors, user-based controls allow adults to access freely, and speakers to publish freely, constitutionally-protected material, without the burdens of adult identification and without fear of criminal sanctions for disseminating speech that might, in some community, be deemed "harmful to minors." Moreover, the diversity and flexibility of user-based controls further the important public policy of affording parents the ability to determine — based on their own family’s values, as well as on the specific ages and needs of their children — the Internet content to which their children should have access. [ 17 ]

C. User-Based Controls Provide More Effective Means of Furthering The Government’s Stated Interest.

In view of the wide availability of sexual material on foreign-based Web sites, as well as other limits on COPA's scope, COPA will not advance the government's stated interest in preventing minors from gaining access to assertedly harmful material on the Web in a "direct and material" way. User-based controls, in contrast, have a far wider reach, and thus provide a far more effective means of furthering the government's stated interest.

User-based controls have the ability to block minors' access to Internet speech originating outside of the United States, which this Court in CDA found to be as high as forty percent. See CDA, 929 F. Supp. at 848. Were COPA to take effect, the percentage of sexual content on the Internet originating abroad would likely increase as foreign content providers seek to fill the void in Internet content left by COPA. [ 18 ] User-based controls, in contrast, have the ability to effectively block and filter content originating abroad, as well as within the United States. In addition, user-based controls extend to material outside the scope of the "commercial purposes" requirement, as well as to material disseminated over all parts of the Internet, including chat groups, news groups, and electronic mail.

Without support, the government argues that user controls cannot keep pace with the growth of Internet publication and will fail to identify certain "harmful" Web sites. To date, the marketplace has put tremendous resources into the creation of user-control technology — surveying millions of Web sites, building up a base of surveyed sites, and developing increasingly sophisticated tools. The collective experiences of amici indicate that the number and sophistication of parental control tools will continue to grow.

Amici believe that user-based controls, on balance, will provide a far greater measure of protection for children than will COPA. While it is true that user-based screening will not prevent all minors from gaining access to all "harmful" materials on the Web, for the above reasons, this approach is far superior to the content-based restrictions on speech imposed by COPA.

D. Congress Adopted COPA Without Adequately Considering These Less Restrictive and More Narrowly Tailored Means.

Congress did not create the detailed factual record constitutionally required to support its claim that COPA is the most narrowly tailored means to achieve its intended ends. The Senate held no hearings on COPA, and the House Commerce Committee conducted only a single hearing, mere weeks before the passage of COPA, as part of an Omnibus appropriations bill. The House Commerce Committee's lone panel of non-Congressional witnesses did not include a single technology expert or provide any basis for a detailed examination of the variety of user-control technologies currently available. [ 19 ]

The Commission on Online Child Protection, created by Congress as part of COPA, is further evidence of Congress' failure to create a detailed factual record as it is required to do. The Commission is tasked to "identify technological or other methods, if any, to help reduce access by minors to material that is harmful to minors on the Internet" (see COPA § 5(c)), including parental resources, blocking and filtering software, labeling and rating, as well as age verification systems — the very less restrictive measures that Congress was required to investigate prior to enacting COPA, but did not. Absent such a factual record, COPA's burdens on constitutionally-protected speech are wholly improper, particularly where, as here, less restrictive, more narrowly tailored, and more effective measures to achieve Congress' stated ends are available.

CONCLUSION

For the foregoing reasons, amici respectfully submit that COPA is an unwarranted restraint on free speech and should be declared facially unconstitutional.