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: CIVIL ACTION
et al. :
:
v. :
:
JANET RENO, in her official capacity as :
Attorney General of the United States. : NO. 98-5591
M E M O R A N D U M
Reed, J. February 1, 1999
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 ACLU v. Reno, 117 S. Ct. 2329 (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.(1) 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 (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 (1974) ("It is not necessary that [a party] first expose himself to
actual arrest or prosecution to be entitled to challenge a statue that he
claims deters the exercise of his constitutional rights."); Doe v. Bolton,
410 U.S. 179, 188-89 (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. 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 Babitt v.
United Farm Workers Nat'l Union, 442 U.S. 289, 298 (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 Babitt, 442 U.S. at 301-02; Doe, 410 U.S. at 188;
American Booksellers, 484 U.S. at 392-93; Chamber of Commerce v. REC, 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.(2) 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.(3) 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 (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.(4) 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
background.
A. The Internet and the World Wide Web
1. The Internet is a giant network that interconnects innumerable smaller
groups of linked computer networks: a network of networks. (Joint
Exhibit 3 1).
2. 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).
3. 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).
4. 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 on-line "chat", and thereby potentially reach
an audience worldwide that shares an interest in a particular topic.
(Joint Exhibit 3 12).
5. 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).
6. 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).
7. In addition to ISPs, individuals may be able to access the Internet
through schools, employers, libraries, and community networks. (Joint
Exhibit 3 14-17).
8. 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 communications on the Internet (as well as within the
major online services) can be roughly grouped into six categories:
(1) one-to-one messaging (such as "e-mail"),
(2) one-to-many messaging (such as "listserv" or "mail exploders"),
(3) distributed message databases (such as "USENET newsgroups"),
(4) real time communication (such as "Internet Relay Chat"),
(5) real time remote computer utilization (such as "telnet"), and
(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).
1. 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).
2. 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).
3. The primary method of remote information retrieval today is the World
Wide Web. (Joint Exhibit 3 25).
4. 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).
5. 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 27).
6. 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).
7. 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).
8. 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).
9. 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.
10. 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).
11. 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).
12. 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).
13. 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. (Hoffman Testimony).
B. The Speech Provided by the Plaintiffs
1. The plaintiffs represent a broad range of individuals, entities, and
organizations suing on behalf of their members, who are speakers,
content providers, and ordinary users on the Web. Some of the
plaintiffs post, read, and respond to content including, inter alia,
resources on obstetrics, gynecology, and sexual health; visual art and
poetry; resources designed for gays and lesbians; information about
books and stock photographic images offered for sale; and online
magazines. (Plaintiffs' Declarations; Testimony of Talbot, Laurila,
Barr, Rielly, and Tepper).
2. Internet users of all ages access content provided by the plaintiffs
over the Web. At least some of the plaintiffs provide interactive fora
such as Web-based electronic mail (email), Web-based chat, and
Web-based discussion groups. Content providers and Web site operators
who offer interactive fora, including some of the plaintiffs, usually
select the topic or topics that will be interactively "discussed" by
users through reading and posting content. (Plaintiffs' Declarations;
Talbot Testimony; Rielly Testimony).
3. The vast majority of information on the plaintiffs' Web sites, as on
the Web in general, is provided to users for free. (Plaintiffs'
Declarations; Hoffman Testimony).
4. The plaintiffs are a diverse group of speakers, which was illustrated
by the live testimony and declarations that were submitted to the
Court.(5) Christopher Barr, the vice president and editor-in-chief of
CNET, testified that CNET's Web site provides news on a variety of
topics which is available to users for free. CNET is supported by
advertising that is displayed on its Web page. Barr testified that
while he did not think that any material on CNET was harmful to minors,
CNET feared prosecution under COPA for materials of a sexual nature on
its Web site, particularly links provided in articles on the site to
other sites on the Web and materials that may be downloaded for free by
a user from the site. Barr testified that articles on the site in the
past have linked to Playboy's Web site, and that a Kama Sutra screen
saver, which includes forty drawings of people engaged in sexual
contact, can be downloaded onto a user's computer. Barr testified that
while CNET had not yet developed a policy regarding what the site would
do to comply with COPA or where it would place screening devices, if at
all, he stated that CNET would probably opt to self-censor the content
of the site. (Barr Testimony).
5. Mitchell Steven Tepper, a member of the ACLU, is owner and operator of
the Sexual Health Network, a Web site that he runs out of his home in
Connecticut. The mission of his Web site is to provide easy access to
information about sexuality geared toward individuals with
disabilities. In addition to content which Tepper provides on the site,
he also offers interactive components, including a bulletin board,
where users may post comments, and a chat room. While any user can
access the content on his site for free, Tepper is trying to make a
profit from the site through advertising, but as yet has been
unsuccessful. Tepper testified that Sexual Health Network fears
prosecution under COPA based on the content of this site, which is
almost exclusively sexual in nature and which contains, for example,
information on sexual surrogacy as a form of sexual therapy and advice
on how a large man and a small women should position themselves
comfortably for intercourse. Tepper expressed concern that because of
the sexual nature of his Web site, implementing one of the affirmative
defenses in COPA on his Web site would have the effect of driving
viewers away from his site because the users would not want to disclose
personal information that reveals their identity in connection with his
site. Tepper also testified that he believed that utilizing a third
party age verification service would reduce the amount of traffic on
his site because of the stigma and costs to the user associated with
such services. (Tepper Testimony).
6. Thomas P. Rielly is the founder and chairman of PlanetOut, a Web site
directed to developing an online community for gay, lesbian, bisexual,
and transgendered people. PlanetOut's primary revenue comes from
advertising on the site. Rielly testified that the Internet is a
valuable resource for "closeted" people who do not voluntarily disclose
their sexual orientation due to fear of the reactions of others because
it allows closeted people access to this information while preserving
their anonymity. PlanetOut provides a member form for users who would
like to register in order to receive free benefits, but it does not
require membership to access its site. Rielly estimated that less than
10% of the users to his site have registered, and PlanetOut does not
verify the registration information provided by the user. The site
includes a bulletin board, on which users may post and read messages,
and chat rooms. The chat rooms are open 24 hours a day, during which
they are monitored by a person for some of the time. Rielly testified
that it would be impracticable to monitor all the chat on the site, and
that there is no way to edit the content of chat before it is posted.
(Rielly Testimony). PlanetOut contains some content of a sexual nature,
including chat profiles of users, at least one of which included a
photograph of a male with exposed genitals, and Internet radio shows
with "Dr. Ruthless" on topics such as anal sex and masturbation.
(Plaintiffs' Exs. 75, 76). Other areas of PlanetOut's site are not
sexual in nature. Rielly testified that he predicted that traffic to
his site would drop off if he were to require credit card or other age
verification on PlanetOut; to support this prediction, he noted that
the traffic to a competitor's site which had placed its entire content
behind a credit card wall and charged users $10 per month only grew to
10,000 total users. While PlanetOut currently cannot process credit
cards on its site, it plans to develop its ability to conduct direct
commercial transactions over the Web in the future. (Rielly Testimony).
C. Commercial Activity on the Web
1. E-commerce, or commercial transactions which are conducted online, is
rapidly increasing. (Defendant's Ex. 188). Hoffman testified that there
are 3.5 million Web sites globally on the Web, and approximately one
third of those sites are commercial, that is Web sites that intend to
make a profit. By the year 2003, it is estimated that the total
revenues from the Web, including revenues from ISPs, business to
business commerce, and business to consumer commerce, will reach $ 1.4
to $ 3 trillion. (Hoffman Testimony). There is no doubt that growth on
the Web is explosive.
2. There are many reasons that may explain such expansive growth. For
example, the Web is attractive to businesses because there are low
barriers to entry as compared to other forms of commerce and the Web
offers a global market or audience of all ages. The Web is attractive
to consumers of all ages because a wide array of products and services
are offered in an environment which attempts to provide those consumers
with "full information." (Hoffman Testimony).
3. Despite the explosive growth and popularity on the Web, not all
companies who operate Web sites are making money online. (Hoffman
Testimony).
4. Hoffman testified that there are five general business models operating
on the Web: (1) the Internet presence model, which involves no direct
sales or advertising but is used by a business to raise customer
awareness of the name and products of the Web site operator, (2) the
advertiser supported or sponsored model, in which nothing is for sale,
content is provided for free, and advertising on the site is the source
of all revenue, (3) the fee based or subscription model in which users
are charged a fee before accessing content, (4) the efficiency or
effective gains model, by which a company uses the Web to decrease
operating costs, and (5) the online storefront, in which a consumer
buys a product or service directly over the Web. (Hoffman Testimony).
5. Dr. Hoffman testified that the most popular business model is the
advertiser supported or sponsored model, which is illustrated by the
variety of online magazines which operate on the Web. The fee based or
subscription model is the least popular on the Web, although there are
some successful examples of this model, such as the Wall Street Journal
Web site. It is possible for a Web site to adopt a business model that
is a hybrid of these five models. (Hoffman Testimony).
6. As online storefront models and general commercialization on the Web
proliferates, the use of credit cards online and the requirement that
users complete fill-out forms or register with a site will increase.
(Hoffman Testimony).
7. The plaintiffs employ a variety of different business models. Some of
the plaintiffs receive income from the operation of their sites by
selling advertising on their Web sites. Some of the plaintiffs charge
other Internet speakers, such as fine artists, fine art galleries, or
audio or video content creators, to post relevant content on their Web
sites. Some of the plaintiffs sell goods over their Web sites, ranging
from millions of books, to condoms and other sexual health devices, to
books that they authored themselves. Some of the plaintiffs generate
revenue by combining these business models. (Plaintiffs' Declarations;
Testimony of Barr, Rielly, Tepper, Talbot, Laurila).
8. Dr. Hoffman testified that investors evaluate an e-business by the
number of customers they believe the Web site is able to attract and
retain over time, or "traffic." She believes that traffic is the most
critical factor for determining success or potential for success on a
Web site. The best way to stimulate user traffic on a Web site is to
offer some content for free to users. Thus, virtually all Web sites
offer at least some free content. (Hoffman Testimony).
9. Dr. Hoffman testified that another factor affecting traffic to a Web
site is "flow." Interactivity increases a users interest level on the
Web, which in turn results in return visits to the Web by users. "Flow"
describes an online experience in which the user is completely engaged
and focused while browsing or surfing the Web, has a sense of control
over the experience, and has a proper mix of skills and challenges.
Because return users equal more traffic to Web sites, facilitating a
user's flow experience is related to a Web site's commercial success.
There are many factors that could disrupt a user's flow, including
registration screens, broken links on a site, or poor site design.
(Hoffman Testimony and Expert Report).
10. Dr. Hoffman observed in her testimony that in general, users of the Web
are reluctant to provide personal information to Web sites unless they
are at the end of an online shopping experience and prepared to make a
purchase. (Hoffman Testimony). Some Web sites that have required
registration or a payment of a fee before granting access to a user to
the site have not been successful, such as HotWired and Idea Market.
Other Web sites that require a credit card to make a purchase have been
successful in obtaining such information from users, such as
Amazon.com. (Hoffman Testimony). Through studies that she has conducted
and her observations of consumer behavior online, Hoffman concluded
that consumers on the Web do not like the invasion of privacy from
entering personal information, that their willingness to reveal
personal information to a Web site is connected to the degree of trust
the user has of the Web site, and that usually users will only reveal
credit card information at the time they want to purchase a product or
service. (Hoffman Testimony).
D. Burden of Implementing the Affirmative Defenses Provided in COPA
1. COPA provides three affirmative defenses that speakers may utilize to
avoid prosecution for communicating harmful to minors materials: (1)
requiring the use of a credit card, debit account, adult access code,
or adult personal identification number, (2) accepting a digital
certificate that verifies age, or (3) any other reasonable measures
that are feasible under available technology. The parties' expert
witnesses agree that at this time, while it is technologically
possible, there is no certificate authority that will issue a digital
certificate that verifies a user's age. (Farmer Testimony; Olsen
Testimony). The plaintiffs presented testimony that there are no other
reasonable alternatives that are technologically feasible at this time
to verify age online. (Farmer Testimony). The defendant did not present
evidence to the contrary.
2. It appears that the parties agree that the technology required to
implement credit card authorization and adult access codes on a Web
site is currently available and used on the Web. (Olsen Testimony;
Farmer Testimony).
3. Depending on (1) the amount of content on a Web site, (2) the amount of
that content that could be considered "harmful to minors," (3) the
degree to which a Web site currently is organized into files and
directories, (4) the degree to which "harmful to minors" content
currently is segregated into a particular file or directory on the Web
site, and (5) the level of expertise of the Web site operator, the
technological requirements for implementing the affirmative defenses of
credit card verification or accepting adult access codes or PINs ranges
in the testimony of the parties from trivial (Olsen Testimony) to
substantial (Farmer Testimony). The specific technological requirements
of and costs associated with both affirmative defenses are detailed
below.
1. Technological Requirements and Out-of-Pocket Costs of Implementing Credit
Cards
1. To obtain credit card verification from users before granting access to
harmful to minors materials, a Web site would need to construct a
credit card screen in front of such materials. (Farmer Testimony). It
is not disputed that a credit card or age verification screen can be
placed at any point on a Web site: on the last page, or in front of an
area of the site, or on select pages throughout the site, or at the
beginning of the site on the home page. (Farmer Testimony; Tepper
Testimony).
2. The parties agree that to implement the verification of credit card
numbers, a Web site would need to undertake several steps, including
(1) setting up a merchant account, (2) retaining the services of an
authorized Internet-based credit card clearinghouse, (3) inserting
common gateway interface, or CGI, scripts into the Web site to process
the user information, (4) possibly rearranging the content on the Web
site, (5) storing credit cards numbers or passwords in a database, and
(6) obtaining a secure server to transmit the credit card numbers.
(Olsen Testimony; Farmer Testimony).
3. The evidence shows that the cost of credit card verification services
range from a start-up cost of approximately $300, plus per transaction
fees, for a service that does not automatically verify or authorize the
credit card numbers on the site to thousands of dollars in start-up
costs, plus per transaction fees, to set up online credit card
verification. (Tepper Testimony; Farmer Testimony).
4. Alternatively, a Web site could retain the services of a third party to
provide online management of the verification of credit cards, but the
Web site would incur costs for such services. (Olsen Testimony).
5. The parties agree that if a Web site is using an ISP that does not
support credit card verification or CGI scripts, a Web site may need to
transfer the content to another ISP or its own server. (Farmer
Testimony; Olsen Testimony). The plaintiffs proffer that a secure
server which supports credit card verification may cost a few thousand
dollars. (Farmer Testimony).
6. There is no dispute that there are two types of credit card
transactions that occur over the Internet: (1) an "authorize only"
transaction (which determines whether the credit card number is valid
and can be used to make a purchase), and (2) a "funds capture"
transaction (which charges a particular amount to the user's credit
card for a product or service). A fee is charged to the content
provider every time a credit card number is authorized; such
transaction fees would be approximately $.15 to $.25 per transaction.
(Farmer Testimony; Olsen Testimony). Such authorization is not
indicated on the credit card holder's monthly statement. (Olsen
Testimony; Farmer Testimony). However, it is not clear from the
conflicting testimony presented at the preliminary injunction hearing
whether credit card verification services or clearinghouses will
authorize or verify a credit card number in the absence of a subsequent
funds capture transaction. (Farmer Testimony; Olsen Testimony ).
7. The parties' experts agree that to avoid incurring the costs of
authenticating a credit card number every time a user wants to access
harmful to minors content behind the screen, a Web site operator could
maintain a database of credit card numbers provided by previous users
to the site, enabling the credit card number of a repeat user to be
verified through the database. Thus, a Web site would only incur the
cost of authorization one time per year for each new user to the
screened content. (Farmer Testimony; Olsen Testimony). A content
provider could also provide users with a password once their credit
card has been authorized and store the valid passwords in a database;
to return to a screened portion of the site, a return user would enter
her password. A Web site could store encrypted credit card numbers or
passwords on the site to reduce security risks associated with storing
such information online. (Farmer Testimony; Olsen Testimony). Creating
and maintaining such a database would impose some technological burdens
and economic costs on a content provider, but a simple database could
be constructed without much expense. (Farmer Testimony, Olsen
Testimony).
8. The plaintiffs presented testimony that a minor may legitimately
possess a valid credit or debit card. (Farmer Testimony). Of course, a
minor may obtain the permission of her parents to use a parent's credit
card as well. The defendant presented no evidence to the contrary.
2. Technological Requirements and Costs Associated with Adult Access Codes
or PINs
1. The knowledgeable witnesses for the parties agree that there are
approximately twenty-five services on the Web which will provide adult
access codes or personal identification numbers. Adult access codes and
adult personal identification numbers (PINs) are passwords that allow a
user to access either an entire site or a restricted area of a Web site
that accepts that particular access code or PIN. (Alsarraf Testimony,
Farmer Testimony).
2. Laith Alsarraf, the president and CEO of Cybernet Ventures, testified
on behalf of the defendant at the preliminary injunction hearing
regarding the adult verification service, Adult Check, provided by his
company. Once an Adult Check screen is inserted at some point into a
Web site, that portion of the Web site is blocked to everyone unless
they possess a valid Adult Check PIN. A Web site operator can sign up
for free with Adult Check to accept Adult Check PINs, and a Web site
operator can earn commissions of up to 50% to 60% of the fees generated
by users who sign up with Adult Check to view screened content on the
site. Adult Check provides the Web site operator with a script, free of
charge, which can be placed at any point on the Web site where the
content provider wishes to block access to minors. (Alsarraf
Testimony).
3. The parties do not dispute that a user who comes across an Adult Check
screen on a Web site may click on the link to the Adult Check site and
immediately apply for an Adult Check PIN online. (Alsarraf Testimony).
Technically, almost all Web sites can link to such a third party, and
the link may be placed anywhere on the Web site. (Farmer Testimony).
4. A user may obtain an Adult Check PIN for $16.95 per year. Adult Check
accepts payment by credit card online, or a user may elect to fax or
mail an application and a check and a copy of a passport or driver's
license to Adult Check. (Alsarraf Testimony).
5. According to Alsarraf, approximately three million users possess a
valid Adult Check PIN. The number of Web sites currently using Adult
Check is approximately 46,000. Adult Check provides a list of links to
other sites utilizing Adult Check PINs on its Web site. The vast
majority of these links are to adult entertainment sites. (Alsarraf
Testimony).
6. Alsarraf explained that Adult Check utilizes mechanisms whereby it
attempts to track fraudulent use of the Adult Check PINs. If Adult
Check determines that a PIN is being used fraudulently, that PIN is
immediately invalidated. In addition, Adult Check offers free tools to
Web sites to prevent a user from bookmarking a page containing harmful
to minors material on a Web site and later returning to that page
without first passing through the Adult Check screen. A Web site would
have to implement such tools to prevent a user from attempting such an
end-run around the screen. (Alsarraf Testimony). The Court infers that
similar tools should be technically available to other Web sites which
have implemented screening by other methods, such as credit cards.
3. Reorganizing a Web Site to Segregate Harmful to Minors Materials
1. It appears clear to all the parties that to place potentially harmful
to minors materials behind credit card or adult verification screens,
some reorganization of the Web site would be required. (Farmer
Testimony; Olsen Testimony). To do this, a content provider could
reorganize the files in the Web site's directory, which is a place on
the site which can hold such files, to disallow files containing
material that is harmful to minors from being served to a user unless
she enters a credit card number or adult access code or PIN. (Farmer
Testimony, Olsen Testimony). A Web site can organize its directories
and the files within the directories in any way it chooses. (Olsen
Testimony; Farmer Testimony).
2. It appears uncontradicted that a content provider can segregate
potentially harmful to minors images from other non-harmful to minors
images and text on a single web page by organizing the potentially
harmful to minors images into a separate directory such that a user
could only call up those images on the page once she had entered her
adult PIN, adult access code, or credit card number. The other images
and text on the page would appear for all users. (Alsarraf Testimony).
Text is more difficult to segregate than images, and thus if a written
article contains only portions that are potentially harmful to minors,
those portions cannot be hidden behind age verification screens without
hiding the whole article or segregating those portions to another page,
without the use of Java scripts or other technology that would allow
the text to be pieced back together once a user entered a credit card,
access code, or PIN. (Farmer Testimony; Olsen Testimony).
3. The party's experts appear to agree that the length of time required
for, and economic costs incurred by, a content provider to review the
content currently on a Web site for potentially harmful to minors
materials and reorganize or segregate such content depends (1) on the
amount of content on a Web site, (2) whether the Web site operator or
content provider can utilize a search mechanism to review its content,
(3) whether a Web site is already organized into files and directories
according to content, and (4) the familiarity a Web site operator has
with the content of the files and directories. (Farmer Testimony; Olsen
Testimony). The effort required to segregate new content on an ongoing
basis over time once a Web site has been organized to implement the
affirmative defenses in COPA may be a relatively easier and less
expensive task for a Web site operator. (Olsen Testimony).
4. Some of the plaintiffs have contracts with advertisers, ISPs, or bounty
partners which prohibit the Web site's ability to place advertisements
near particular content on the Web site or post particular content that
contains nudity or that is of a sexually explicit nature. (Defendant's
Exs. 25 (under seal) and 105; Tepper Testimony). Such contracts
indicate that market forces may necessitate Web site operators and
content providers who rely on advertising revenue to segregate content
of a sexual nature regardless of COPA.
5. Once again the experts agreed that the only way to comply with COPA
regarding potentially harmful to minors materials in chat rooms and
bulletin boards is to require that a credit card screen or adult
verification be placed before granting access to all users (adults and
minors) to such fora, or to implement a full-time monitor on the site
to read all content before it is posted. Because of the dynamic nature
of the content of such interactive fora, there is no method by which
the creators of those fora could block access by minors to harmful to
minors materials and still allow unblocked access to the remaining
content for adults and minors, even if most of the content in the fora
was not harmful to minors. (Farmer Testimony; Olsen Testimony).
4. Security Issues
1. COPA requires that content providers or Web site operators take the
necessary precautions to prevent unauthorized access to the information
they receive from users during the age verification process.
Implementing security measures to safeguard the information provided by
users, such as the use of encryption methods, SSLs, and secure servers,
will impose some additional technological burdens and economic costs on
Web site operators.
5. Effect of Complying with COPA on Traffic
1. Hoffman testified that she concluded in light of consumer behavior on
the Web that COPA would have a negative effect on users because it will
reduce anonymity to obtain the speech and reduce the flow experience of
the user, resulting in a loss of traffic to Web sites. She testified
that it was her prediction that content providers would have to adopt
one or more methods to comply with COPA by (1) eliminating content on
the site that was, or potentially could be considered, harmful to
minors, or (2) erect a age verification system on their Web site in
front of harmful to minors materials, or (3) alter the questionable
content to comply with COPA. Hoffman opined that whatever method of
compliance a speaker elected, users may visit other sites which offered
such material without a screen, which would result in loss of traffic
to a site. (Hoffman Testimony). Olsen, one of the experts who testified
for the defendant, conceded in his testimony that the number of users
deterred from a site by registration requirements imposed by COPA could
be in the thousands. (Olsen Testimony).
2. Hoffman testified that she concluded that the out of pocket costs
associated with complying with COPA did not constitute the real
economic burden on content providers, but rather it was the economic
harm that would result from loss of traffic to the site that
constituted the burden. Even though a Web site operator could pass the
cost of compliance with COPA on to the consumer, Hoffman testified that
in general users would refuse to pay to access content on the site.
3. Brian L. Blonder, an accountant with expertise in evaluating business
plans and economic conduct, testified that in his opinion, COPA would
not impose an unreasonable economic burden from either out-of-pocket
costs or loss of viewers on the seven Web sites of the plaintiffs which
he investigated, including ArtNet, CNET, Salon Magazine, A Different
Light Bookstore, Sexual Health Network, Planet Out, and Free Speech
Media. (Blonder Testimony and Supplemental Expert Report).
4. It is reasonable to infer that the number of users deterred from a
screened Web site or a screened portion of a Web site and the economic
impact that such loss of viewers may have on a Web site depends in part
on the number of users that visit the site, the strength of the
motivation of the user to access the screened material, and the
economic resources and revenues available to the Web site from other
sources and content. The plaintiffs have shown that they are likely to
convince the Court that implementing the affirmative defenses in COPA
will cause most Web sites to lose some adult users to the portions of
the sites that are behind screens.
E. Blocking or Filtering Software
1. The plaintiffs contend that a lesser restrictive means to achieve the
goal of Congress of restricting the access of minors to materials that
are harmful to them is the use of "blocking" or "filtering" technology.
2. It appears that the parties do not dispute that blocking or filtering
software may be used to block Web sites and other content on the
Internet that is inappropriate for minors. Such technology may be
downloaded and installed on a user's home computer at a price of
approximately $40.00. Alternatively, it may operate on the user's ISP.
Blocking technology can be used to block access by minors to whole
sites or pages within a site. (Olsen Testimony). Blocking and filtering
software will block minors from accessing harmful to minors materials
posted on foreign Web sites, non-profit Web sites, and newsgroups,
chat, and other materials that utilize a protocol other than HTTP.
(Olsen Testimony).
3. It appears undisputed that blocking and filtering technology is not
perfect in that it is possible that some Web sites that may be deemed
inappropriate for minors may not be blocked while some Web sites that
are not inappropriate for minors may be blocked. In addition, a minor's
access to the Web is not restricted if she accesses the Web from an
unblocked computer or through another ISP. It is possible that a
computer-savvy minor with some patience would be able to defeat the
blocking device. (Magid Testimony). No evidence was presented to the
Court as to the percentage of time that blocking and filtering
technology is over- or underinclusive.
4. Several Web sites associated with plaintiffs or declarants in this
litigation, including Web sites of Condomania, Electronic Frontier
Foundation, RiotGrrl, Sexual Health Network, A Different Light,
PlanetOut, and Philadelphia Gay News, are currently blocked by
SurfWatch and Cyberpatrol, which are two blocking or filtering
programs. (Joint Stipulation Exhibit 3 45-51).
VI. Analysis of the Motion for Preliminary Injunction and Conclusions of Law
A. Substantial Likelihood of Success on the Merits
For the purposes of the motion for preliminary injunction, the Court will
focus its analysis on the claim of plaintiffs that COPA is unconstitutional
on its face for violating the First Amendment rights of adults. The first
task of the Court is to determine the level of scrutiny to apply to COPA;
then the Court must apply that level of scrutiny to the statute to determine
whether plaintiffs are likely to succeed on their claim that it does not
pass constitutional muster.
1. Standard of Scrutiny
COPA is a content-based regulation of speech which is protected at least as
to adults. Although there are lower standards of scrutiny where the
regulation of general broadcast media or "commercial" speech, that is,
speech that proposes a commercial transaction, are involved, neither is
appropriate here. In Reno I, the Supreme Court found that the case law
provided "no basis for qualifying the level of First Amendment scrutiny that
should be applied to this medium," rejecting the argument that the lowered
level of scrutiny applied to the broadcasting medium should be applied to
the Internet. See ACLU v. Reno, 117 S.Ct 2329, 2344 (1996). The defendant
asserted in her brief that the statute may be subject to the lower level of
scrutiny which has been applied to the regulation of "commercial speech;"
however, the defendant did not press that position for the purposes of the
temporary restraining order, nor did she argue this position at the
preliminary injunction hearing. Further, it is clear that the case law
setting forth the standard of scrutiny for the regulation of commercial
speech is inapplicable to the statute before the Court.
Nonobscene sexual expression is protected by the First Amendment. See Sable
Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). As a
content-based regulation of such expression, COPA is presumptively invalid
and is subject to strict scrutiny by this Court. See R.A.V. v. City of St.
Paul , 505 U.S. 377, 381 (1992); Sable, 492 U.S. at 126. "As a matter of
constitutional tradition, in the absence of evidence to the contrary, we
presume that governmental regulation of the content of speech is more likely
to interfere with the free exchange of ideas than to encourage it." ACLU v.
Reno, 117 S.Ct. 2329, 2351 (1997). Thus, the content of such protected
speech may be regulated in order to promote a compelling governmental
interest "if it chooses the least restrictive means to further the
articulated interest." Sable, 492 U.S. at 126 ("It is not enough to show
that the Government's ends are compelling; the means must be carefully
tailored to achieve those ends."). Attempts of Congress to serve compelling
interests must be narrowly tailored to serve those interests without
unnecessarily interfering with First Amendment freedoms. Id. Thus, the
burden imposed on speech must be outweighed by the benefits gained by the
challenged statute. See Elrod v. Burns, 427 U.S. 347, 363 (1976). The
Supreme Court has repeatedly stated that the free speech rights of adults
may not be reduced to allow them to read only what is acceptable for
children. See, e.g., Sable, 492 U.S. at 127 (citing Butler v. Michigan, 352
U.S. 380, 383 (1957) (reversing a conviction under a statute which made it
an offense to make available to the public materials found to have a
potentially harmful influence on minors as an effort to "burn the house to
roast the pig")).
2. Burden on Speech Imposed by COPA
The first step in determining whether a statute passes strict scrutiny is to
assess the burden the statute places on speech. A statute which has the
effect of deterring speech, even if not totally suppressing speech, is a
restraint on free expression. See Fabulous Associates, Inc. v. Pennsylvania
Public Utility Commission, 896 F.2d 780, 785 (3d Cir. 1990). One such
deterrent can be a financial disincentive created by the statute. "A statute
is presumptively inconsistent with the First Amendment if it imposes a
financial burden on speakers because of the content of their speech." Simon
& Schuster, Inc. v. Members of the New York State Crime Victims Board, 502
U.S. 105, 115 (1991). The Court in Erznoznik noted that the regulation on
speech at issue left the speaker "faced with an unwelcome choice: to avoid
prosecution of themselves and their employees they must either restrict
their movie offerings or construct adequate protective fencing which may be
extremely expensive or even physically impracticable." Erznoznik v. City of
Jacksonville, 422 U.S. 205, 217 (1975).
In Simon & Schuster, in which the constitutionality of a New York statute
which required that the proceeds of any publication of any person who
committed a crime be placed in an escrow account for the benefit of the
victims of the crime, the Supreme Court noted that "[a] statute is
presumptively inconsistent with the First Amendment if it imposes a
financial burden on speakers because of the content of their speech." 502
U.S. at 115. "In the context of financial regulation, it bears repeating, .
. . that the government's ability to impose content-based burdens on speech
raises the specter that the government may effectively drive certain ideas
or viewpoints from the marketplace." Id. at 116. The Court considered this
law to be similar to an unconstitutional tax based on the content of speech,
as "[b]oth forms of financial burden operate as disincentives to speak." Id.
at 117. The Supreme Court found that the challenged law established a
financial disincentive to create or publish works with a particular content,
and as such, the government must justify such differential treatment by
showing that the statute was necessary to serve a compelling interest and it
narrowly drawn to achieve that end. Id., at 118.
In Fabulous Associates, the Court of Appeals for the Third Circuit
considered the constitutionality of an amendment to the Pennsylvania Public
Utility Act which required adults who wished to listen to sexually explicit
recorded telephone messages to apply for an access code to receive such
messages. The court noted that requiring an adult to obtain an access code
exerted an inhibitory effect on speech, which "raises issues comparable to
those raised by direct [government] imposed burdens or restrictions." Id.
The court affirmed the district court's finding that access codes would
chill or inhibit potential adult users of dial-a-porn, based on testimony
that "impulse callers" would not access the material if they must apply for
an access code, as well as evidence that the plaintiffs' revenues dropped to
$0 when they switched to an identification number system and the lack of any
evidence from the Commonwealth to rebut the showing by plaintiffs. Id. at
785-86.
The district court in Fabulous Associates had found that the statute would
impose additional costs on potential customers who owned rotary phones
because they would need to purchase equipment so that the phone could
utilize the access code. Id. at 786. The cost of the equipment ranged from
$19.95 to $29.95. Id. The Court of Appeals observed that while this may not
seem overly burdensome, the "First Amendment is not available 'merely to
those who can pay their own way.'" Id. at 787 (quoting Murdock v.
Pennsylvania, 319 U.S. 105, 111 (1943)). The court noted that this cost may
be a deterrent to some users who may call the services on impulse or too
infrequently to justify the extra cost. Id. at 787.
In Reno I, in determining whether the CDA imposed a burden on
constitutionally protected adult speech, the Supreme Court adopted the
district court's finding that "existing technology did not include any
effective method for a sender to prevent minors from obtaining access to its
communications on the Internet without also denying access to adults." 117
S.Ct 2329, 2347 (1997). The district court also found that there was "no
effective way to determine the age of a user who is accessing material
through e-mail, mail exploders, newsgroups, or chat rooms." Id. The Supreme
Court noted that this limitation, as well as the prohibitively high economic
burden of age verification for some sites, "must inevitably curtail a
significant amount of adult communication on the Internet." Id.
Much of the evidence and argument at the preliminary injunction hearing here
focused on the economic costs that would be imposed on Web site operators
and content providers, and particularly the plaintiffs in this action, in
complying with COPA, including out-of-pocket costs of implementing the
affirmative defenses, loss of revenue and potential closure of Web sites
that could occur, and the ability of specific plaintiffs to shoulder these
economic costs as incremental costs of running a commercial Web site. The
defendant argues that the economic and technological burden imposed by COPA
is not substantial and does not impose an unreasonable economic burden on
Web site operators.
The economic costs associated with compliance with COPA are relevant to the
Court's determination of the burden imposed by the statute. However, even if
this Court should conclude that most of the plaintiffs would be able to
afford the cost of implementing and maintaining their sites if they add
credit card or adult verification screens, such conclusion is not
dispositive. First Amendment jurisprudence indicates that the relevant
inquiry is determining the burden imposed on the protected speech regulated
by COPA, not the pressure placed on the pocketbooks or bottom lines of the
plaintiffs, or of other Web site operators and content providers not before
the Court. The protection provided by the First Amendment in this context is
not diminished because the speakers affected by COPA may be commercial
entities who speak for a profit. "The government's power to impose
content-based financial disincentives on speech surely does not vary with
the identity of the speaker." See Simon & Schuster, at 117. Strict scrutiny
is required, not because of the risk of driving certain commercial Web sites
out of business, but the risk of driving this particular type of protected
speech from the marketplace of ideas.
In assessing the burden placed on protected speech by COPA, it is necessary
to take into consideration the unique factors that affect communication in
the new and technology-laden medium of the Web. Each medium of expression
"must be assessed for First Amendment purposes by standards suited to it,
for each may present its own problems." Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546, 557 (1975). For example, the plaintiffs have presented
evidence that the nature of the Web and the Internet is such that Web site
operators and content providers cannot know who is accessing their sites, or
from where, or how old the users are, unless they take affirmative steps to
gather information from the user and the user is willing to given them
truthful responses. In the same vein, it can be inferred that any barrier
that Web site operators and content providers construct to bar access to
even some of the content on their sites to minors will be a barrier that
adults must cross as well.
Evidence presented to this Court is likely to establish at trial that the
implementation of credit card or adult verification screens in front of
material that is harmful to minors may deter users from accessing such
materials and that the loss of users of such material may affect the
speakers' economic ability to provide such communications. (Finding of Fact
61-62). The plaintiffs are likely to establish at trial that under COPA, Web
site operators and content providers may feel an economic disincentive to
engage in communications that are or may be considered to be harmful to
minors and thus, may self-censor the content of their sites. Further, the
uncontroverted evidence showed that there is no way to restrict the access
of minors to harmful materials in chat rooms and discussion groups, which
the plaintiffs assert draw traffic to their sites, without screening all
users before accessing any content, even that which is not harmful to
minors, or editing all content before it is posted to exclude material that
is harmful to minors. (Finding of Fact 59). This has the effect of burdening
speech in these fora that is not covered by the statute. I conclude that
based on the evidence presented to date, the plaintiffs have established a
substantial likelihood that they will be able to show that COPA imposes a
burden on speech that is protected for adults. The Court's analysis then
turns to the likelihood of plaintiff's ability to make a successful showing
that the statute is narrowly tailored to a compelling government interest.
3. Compelling Government Interest
It is clear that Congress has a compelling interest in the protection of
minors, including shielding them from materials that are not obscene by
adult standards. See Sable, 492 U.S. at 126 (citing Ginsberg v. New York,
390 U.S. 629, 639-40 (1968)). There is nothing in the legislative history of
COPA that indicates that the intention of Congress was anything but the
protection of minors. Congress recognized that the Web is widely accessible
to minors and pornography is widely available on the Web. See H.R. Rep.
No.105-775 at 9-10. Congress expressed that its intent in COPA was to
require "the commercial pornographer to put sexually explicit messages
'behind the counter'" on the Web, similar to existing requirements in some
states that such material to be held behind the counter or sold in a paper
wrapper in a physical store. Id. at 15.
4. Narrow Tailoring and Least Restrictive Means
While the plaintiffs have the burden in the context of the motion for
preliminary injunction of showing success on the merits of their claims, the
defendant ultimately will bear the burden of establishing that COPA is the
least restrictive means and narrowly tailored its objective, which the
defendant argues is the regulation of commercial pornographers. See Elrod v.
Burns, 427 U.S. 347, 362 (1976). In Elrod, the Supreme Court described
"least restrictive means" by stating that "if the State has open to it a
less drastic way of satisfying its legitimate interests, it may not choose a
legislative scheme that broadly stifles the exercise of fundamental personal
liberties." Id. at 363. Further, to survive constitutional challenge the
statute "must further some vital government end by a means that is least
restrictive of [First Amendment freedoms] in achieving that end, and the
benefit gained must outweigh the loss of constitutionally protected rights."
Id.
In Simon & Schuster, 502 U.S. 105, 121 (1991), the Supreme Court, in holding
that the "Son of Sam" law, which restricted the ability of a person who had
committed a crime to profit by writing about it, was significantly
overinclusive and thus not narrowly tailored, noted "that had the law been
in effect at the time and place of publication, it would have escrowed
payment for such works as The Autobiography of Malcolm X, . . . Civil
Disobedience, . . . even the Confessions of St. Augustine." While the Court
recognized that this argument was "hyperbole," the Court noted that the law
clearly reached a wide range of literature that was outside the scope of the
statute's interest. Id. at 122.
In Fabulous Associates, the Court of Appeals for the Third Circuit upheld
the district court's finding that a less restrictive means was available
other than requiring access codes because calls to dial-a-porn could be
pre-blocked until a customer requested otherwise. Id. at 787. The court held
that even if some chill was associated with pre-blocking, it did not entail
additional costs to the user nor did it require that the message provider
purchase new equipment and absorb increased operating costs. Id. at 788.
The Fabulous Associates court rejected the Commonwealth's argument that
central blocking was not as effective as the access code requirement of the
statute because minors with phone lines could request unblocking or gain
access to unblocked phones, or that a parent who chooses to unblock his
phone for the parent's use would place the dial-a-porn messages within the
reach of minors. Id. at 788. The court noted that "[i]n this respect, the
decision a parent must make is comparable to whether to keep sexually
explicit books on the shelf or subscribe to adult magazines. No
constitutional principle is implicated. The responsibility for making such
choices is where our society has traditionally placed it - on the shoulders
of the parent." Id.
In evaluating the proposed less restrictive means, the court acknowledged
that some minors will access the dial-a-porn message if they are determined
to do so; however, the court noted that preventing "'a few of the most
enterprising and disobedient young people'" from obtaining access to these
messages did not justify a statute that had the "'invalid effect of limiting
the content of adult telephone conversations to that which is suitable for
children.'" Id. at 788 (quoting Sable Communications v. FCC, 109 S.Ct. 2829,
2838, 2839 (1989)).
Here, this Court's finding that minors may be able to gain access to harmful
to minors materials on foreign Web sites, non-commercial sites, and online
via protocols other than http demonstrates the problems this statute has
with efficaciously meeting its goal. Moreover, there is some indication in
the record that minors may be able to legitimately possess a credit or debit
card and access harmful to minors materials despite the screening mechanisms
provided in the affirmative defenses. See Reno I, 117 S.Ct. at 2349 (noting
that "[e]ven with respect to the commercial pornographers that would be
protected by the defense[s] [provided in the CDA], the Government failed to
adduce any evidence that these verification techniques actually preclude
minors from posing as adults"). These factors reduce the benefit that will
be realized by the implementation of COPA in preventing minors from
accessing such materials online.
On the record to date, it is not apparent to this Court that the defendant
can meet its burden to prove that COPA is the least restrictive means
available to achieve the goal of restricting the access of minors to this
material. Of course, the final determination must await trial on the merits.
The plaintiffs suggest that an example of a more efficacious and less
restrictive means to shield minors from harmful materials is to rely upon
filtering and blocking technology.(6) Evidence was presented that blocking
and filtering software is not perfect, in that it is possible that some
appropriate sites for minors will be blocked while inappropriate sites may
slip through the cracks. However, there was also evidence that such software
blocks certain sources of content that COPA does not cover, such as foreign
sites and content on other protocols. (Finding of Fact 66). The record
before the Court reveals that blocking or filtering technology may be at
least as successful as COPA would be in restricting minors' access to
harmful material online without imposing the burden on constitutionally
protected speech that COPA imposes on adult users or Web site operators.
Such a factual conclusion is at least some evidence that COPA does not
employ the least restrictive means.
Beyond the debate over the relative efficacy of COPA compared to blocking
and filtering technology, plaintiffs point to other aspects of COPA which
Congress could have made less restrictive. Notably, the sweeping category of
forms of content that are prohibited - "any communication, picture, image,
graphic image file, article, recording, writing, or other matter of any
kind" (emphasis added) -- could have been less restrictive of speech on the
Web and more narrowly tailored to Congress' goal of shielding minors from
pornographic teasers if the prohibited forms of content had included, for
instance, only pictures, images, or graphic image files, which are typically
employed by adult entertainment Web sites as "teasers." In addition, perhaps
the goals of Congress could be served without the imposition of possibly
excessive and serious criminal penalties, including imprisonment and hefty
fines, for communicating speech that is protected as to adults or without
exposing speakers to prosecution and placing the burden of establishing an
affirmative defense on them instead of incorporating the substance of the
affirmative defenses in the elements of the crime.
B. Irreparable Harm
The plaintiffs have uniformly testified or declared that their fears of
prosecution under COPA will result in the self-censorship of their online
materials in an effort to avoid prosecution, and this Court has concluded in
the resolution of the motion to dismiss that such fears are reasonable given
the breadth of the statute. Such a chilling effect could result in the
censoring of constitutionally protected speech, which constitutes an
irreparable harm to the plaintiffs. "It is well established that the loss of
First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury." Hohe v. Casey, 868 F.2d 69, 72,73 (3d Cir.
1989). For plaintiffs who choose not to self-censor their speech, they face
criminal prosecution and penalties for communicating speech that is
protected for adults under the First Amendment, which also constitutes
irreparable harm.
C. Balance of Interests
In deciding whether to issue injunctive relief, this Court must balance the
interests and potential harm to the parties. It is well established that no
one, the government included, has an interest in the enforcement of an
unconstitutional law. See ACLU v. Reno, 929 F. Supp. 824, 849 (E.D. Pa.
1996). It follows in this context that the harm to plaintiffs from the
infringement of their rights under the First Amendment clearly outweighs any
purported interest of the defendant.
While the public certainly has an interest in protecting its minors, the
public interest is not served by the enforcement of an unconstitutional law.
Indeed, to the extent that other members of the public who are not parties
to this lawsuit may be effected by this statute, the interest of the public
is served by preservation of the status quo until such time that this Court
may ultimately rule on the merits of plaintiffs' claims at trial.
VII. Conclusion
The protection of children from access to harmful to minors materials on the
Web, the compelling interest sought to be furthered by Congress in COPA,
particularly resonates with the Court. This Court and many parents and
grandparents would like to see the efforts of Congress to protect children
from harmful materials on the Internet to ultimately succeed and the will of
the majority of citizens in this country to be realized through the
enforcement of an act of Congress. However, the Court is acutely cognizant
of its charge under the law of this country not to protect the majoritarian
will at the expense of stifling the rights embodied in the Constitution.
Even at this preliminary stage of the case, I borrow from Justice Kennedy,
who faced a similar dilemma when the Supreme Court struck down a statute
that criminalized the burning of the American flag:
The case before us illustrates better than most that the judicial power is
often difficult in its exercise. We cannot here ask another Branch to share
responsibility, as when the argument is made that a statute is flawed or
incomplete. For we are presented with a clear and simple statute to be
judged against a pure command of the Constitution. The outcome can be laid
at no door but ours.
The hard fact is that sometimes we must make decisions that we do not like.
We make them because they are right, right in the sense that the law and the
Constitution, as we see them, compel the result. And so great is our
commitment to the process that, except in the rare case, we do not pause to
express distaste for the result, perhaps for fear of undermining a valued
principle that dictates the decision. This is one of those rare cases.
Texas v. Johnson, 491 U.S. 397, 420 (1989) (Kennedy, J., concurring).
Despite the Court's personal regret that this preliminary injunction will
delay once again the careful protection of our children, I without
hesitation acknowledge the duty imposed on the Court and the greater good
such duty serves. Indeed, perhaps we do the minors of this country harm if
First Amendment protections, which they will with age inherit fully, are
chipped away in the name of their protection.
Based on the foregoing analysis, the motion to dismiss the plaintiffs for
lack of standing will be denied.
Based on the foregoing findings and analysis, the Court concludes that the
plaintiffs have established a likelihood of success on the merits,
irreparable harm, and that the balance of interests, including the interest
of the public, weighs in favor of enjoining the enforcement of this statute
pending a trial on the merits, and the motion of plaintiffs for a
preliminary injunction will be granted.
An appropriate Order follows.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN CIVIL LIBERTIES UNION, : CIVIL ACTION
et al. :
:
v. :
:
JANET RENO, in her official capacity as :
Attorney General of the United States : NO. 98-5591
O R D E R
AND NOW, this 1st day of February, 1999, upon consideration of the motion of
plaintiffs for a preliminary injunction and supporting brief (Document No.
73), the response of the defendant (Document No. 82), and the supplemental
reply brief of the plaintiffs (Document No. 74), as well as the exhibits,
declarations, and other evidence submitted by the parties, having held a
hearing on this motion in which counsel for both sides presented evidence
and argument, and for the reasons set forth in the accompanying Memorandum,
it is hereby ORDERED that the motion is GRANTED and defendant Janet Reno, in
her official capacity as Attorney General of the United States, and,
pursuant to Federal Rule of Civil Procedure 65(d), defendant's officers,
agents, servants, employees, and attorneys, and those persons in active
concert or participation with defendant who receive actual notice of this
Order, are PRELIMINARILY ENJOINED from enforcing or prosecuting matters
premised upon 47 U.S.C. 231 of the Child Online Protection Act at any
time(7) for any conduct(8) that occurs while this Order is in effect. This
Order does not extend to or restrict any action by defendant in connection
with any investigations or prosecutions concerning child pornography or
material that is obscene under 47 U.S.C. 231 or any other provisions of the
United States Code.
IT IS FURTHER ORDERED that the filing of a bond is waived.(9)
IT IS FURTHER ORDERED that this preliminary injunction shall remain in
effect until a final adjudication of the merits of plaintiffs' claims has
been made.
IT IS FURTHER ORDERED that, upon consideration of the motion of defendant to
dismiss the complaint of plaintiffs for lack of standing (Document No. 50),
the response of plaintiffs (Document No. 69), and the reply thereto
(Document No. 81), for the reasons set forth in the accompanying Memorandum,
the motion is DENIED.
LOWELL A. REED, JR., J.
1. The plaintiffs are not challenging the provision of COPA that pertains to
speech that is obscene. Thus, the enforcement of that provision of COPA is
unaffected by this Memorandum and Order. Obscenity and child pornography
have been the subject of other separate criminal statutes for many years.
These laws are as well not implicated in this proceeding.
2. Plaintiff Electronic Privacy Information Center ("EPIC") is a nonprofit
education organization which studies civil liberties and privacy issues on
the Internet. Thus, EPIC claims that it will suffer imminent injury as a
user of the Web because it fears that it will have to incur costs or its
staff will lose anonymity in accessing content on the Web and that content
providers, to comply with COPA, will remove materials from their Web sites
that it has been able to access and study in the past. (Complaint 137-141).
The First Amendment protects the right to "receive information and ideas."
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U.S. 748, 757 (1976) (internal quote omitted); see also Pacific
Gas and Electric Company v. Public Utilities Commission of California, 475
U.S. 1, 7 (1986) (noting that the First Amendment protects the public's
interest in receiving information); Kreimer v. Bureau of Police for the Town
of Morristown, 958 F.2d 1242, 1254-55 (3d Cir. 1992) (same).
3. Furthermore, the four organizations who are bringing suit on behalf of
their members -- the American Civil Liberties Union, the American Booksellers
Foundation for Free Expression, the Electronic Frontier Foundation and the
Internet Content Coalition -- have averred facts sufficient to support their
standing to facially challenge the statute. See, e.g., Hunt v. Washington
Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). In each case, members of
their respective organizations would have standing in their own right, the
interest each organization seeks serves to protect is germane to its purpose
and neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit. See id.
4. The final adjudication of this case will not occur until after a trial on
the merits, and thus, the parties may present further evidence at that
trial. The findings of fact entered today, unless the result of a
stipulation of the parties or based upon substantially identical testimony
by witnesses for both sides, are characterized by the Court unconventionally
as "testimony" or "evidence presented" so that the Court can explain the
evidentiary basis for this Court's legal conclusion that the plaintiffs have
met their burden under Federal Rule of Civil Procedure 65 to establish their
right to the injunction they seek. Thus, these provisional findings will
govern the case until conclusive findings of fact on the merits of the case
are entered after the trial.
5. The Court considered live testimony and declarations of the plaintiffs
which was submitted at both the preliminary injunction hearing and the
temporary restraining order hearing. Declarations were submitted by Dr.
Jeffrey Scott Levy of OBGYN.net; Nikki Douglas of RiotGrrl; Charles Tarver
of BlackStripe; Nadine Strossen, member of the ACLU; Mark Segal of
Philadelphia Gay News; Jon E. Noring of the Electronic Frontier Foundation
(EFF); Marc Rotenberg of the Electronic Privacy Information Center; John
William Boushka of EFF; David Bunnell, member of the ACLU; Lawrence
Ferlinghetti of City Lights Bookstore and member of the ACLU; Richard P.
Groman of West Stock; Miriam Sontz of Powell's Bookstore; Christopher Finan
of the American Booksellers for Free Expression; Adam K. Glickman of Addazi,
Inc. d/b/a Condomania; Ernest Johnson of ArtNet Worldwide Corporation,
Roberta Speyer of OBGYN.net, Barry Steinhardt of EFF; and Patricia Nell
Warren, a member of the ACLU.
6. The plaintiffs do not argue that Congress should statutorily require the
use of such technology to shield minors from such materials.
7. As noted by this Court in the Order granting the plaintiffs' motion for a
temporary restraining order on November 19, 1998, it appears from the
arguments of the parties and research conducted by this Court that it is
unclear whether a federal court has the power to enjoin prosecution under a
statute for acts that occur during the pendency of the injunctive relief if
the decision to enjoin enforcement of the statute is later reversed on
appeal. See Edgar v. MITE Corporation, 457 U.S. 624, 647, 655 (1982)
(Stevens, J., concurring) (asserting that a federal judge lacked the
authority to enjoin later state prosecution under a state statute)
(Marshall, J., dissenting) (asserting that federal judges have the power to
grant such injunctive relief and if the order is ambiguous, it should be
presumed to grant such relief). While there is no binding precedent that
affirmatively establishes the power of a court to enter such an injunction,
there is an indication in the case law that plaintiffs who rely in their
actions on judgments of the court and are later prosecuted for their actions
after the judgment is reversed can be successful in raising the judgment of
the court as a defense to prosecution. See Clarke v U.S., 915 F.2d 699 (D.C.
Cir. 1990) (citing cases and noting that a federal judge enjoining a federal
prosecution does not present the federalism concerns that were present in
Edgar). Granting injunctive relief to the plaintiffs, who are raising a
constitutional challenge to a criminal statute that imposes imprisonment and
fines on its violators, that only immunizes them for prosecution during the
pendency of the injunction, but leaves them open to potential prosecution
later if the Order of this Court is reversed, would be hollow relief indeed
for plaintiffs and members of the public similarly situated. Thus, the Court
enjoins the defendant from enforcing COPA against acts which occur during
the pendency of this Order, in an effort to tailor the relief to the
realities of the situation facing the plaintiffs.
8. The defendant urges this Court to bar enforcement of COPA, if at all,
only as to the plaintiffs. However, the defendant has presented no binding
authority or persuasive reason that indicates that this Court should not
enjoin total enforcement of COPA. See ACLU v. Reno, 929 F. Supp. 824, 883
(1996); Virginia v. American Booksellers Association, 484 U.S. 383, 392
(1988) (noting that in the First Amendment context, "litigants . . . are
permitted to challenge a statute not because of 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")(internal
quotations omitted).
9. See ACLU v. Reno, 929 F. Supp. at 884 (citing Temple University v. White,
941 F.2d 201, 220 (3d Cir. 1991)).
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