American Civil Liberties Union v. Reno

OPINION OF THE COURT

This appeal “presents a conflict between one of society’s most cherished rights— freedom of expression' — -and one of the government’s most profound obligations— the protection of minors.” American Booksellers v. Webb, 919 F.2d 1493, 1495 (11th Cir.1990). The government challenges the District Court’s issuance of a preliminary injunction which prevents the enforcement of the Child Online Protection Act, Pub.L. No. 105-277, 112 Stat. 2681 (1998) (codified at 47 U.S.C. § 231) (“COPA”), enacted in October of 1998. At issue is COPA’s constitutionality, a statute designed to protect minors from “harmful material” measured by “contemporary community standards” knowingly posted on the World Wide Web (“Web”) for commercial purposes. 1

*166 We will affirm the District Court’s grant of a preliminary injunction because we are confident that the ACLU’s attack on COPA’s constitutionality is likely to succeed on the merits. Because material posted on the Web is accessible by all Internet users worldwide, and because current technology does not permit a Web publisher to restrict access to its site based on the geographic locale of each particular Internet user, COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state’s community standards in order to avoid criminal liability. Thus, because the standard by which COPA gauges whether material is “harmful to minors” is based on identifying “contemporary community standards” the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech.

In affirming the District Court, we are forced to recognize that, at present, due to technological limitations, there may be no other means by which harmful material on the Web may be constitutionally restricted, although, in light of rapidly developing technological advances, what may now be impossible to regulate constitutionally may, in the not-too-distant future, become feasible.

I. BACKGROUND

COPA was enacted into law on October 21, 1998. Commercial Web publishers subject to the statute that distribute material that is harmful to minors are required under COPA to ensure that minors do not access the harmful material on their Web site. COPA is Congress’s second attempt to regulate the dissemination to minors of indecent material on the Web/Internet. The Supreme Court had earlier, on First Amendment grounds, struck down Congress’s first endeavor, the Communications Decency Act, (“CDA”) which it passed as part of the Telecommunications Act of 1996. 2 See Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) {“Reno II”). To best understand the current challenge to COPA, it is necessary for us to briefly examine the CDA.

A. CDA

The CDA prohibited Internet users from using the Internet to communicate material that, under contemporary community standards, would be deemed patently offensive to minors under the age of eighteen. See Reno II, 521 U.S. at 859-60, 117 S.Ct. 2329. 3 In so restricting Internet users, the CDA provided two affirmative defenses to prosecution; (1) the use of a *167 credit card or other age verification system, and (2) any good faith effort to restrict access by minors. See id. at 860, 117 S.Ct. 2329. In holding that the CDA violated the First Amendment, the Supreme Court explained that without defining key terms the statute was unconstitutionally vague. Moreover, the Court noted that the breadth of the CDA was “wholly unprecedented” in that, for example, it was “not limited to commercial speech or commercial entities ... [but rather] [i]ts open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers.” Id. at 877, 117 S.Ct. 2329.

Further, the Court explained that, as applied to the Internet, a community standards criterion would effectively mean that because all Internet communication is made available to a worldwide audience, the content of the conveyed message will be judged by the standards of the community most likely to be offended by the content. See id. at 877-78. Finally, with respect to the affirmative defenses authorized by the CDA, the Court concluded that such defenses would not be economically feasible for most noncommercial Web publishers, and that even with respect to commercial publishers, the technology had yet to be proven effective in shielding minors from harmful material. See id. at 881. As a result, the Court held that the CDA was not tailored so narrowly as to achieve the government’s compelling interest in protecting minors, and that it lacked the precision that the First Amendment requires when a statute regulates the content of speech. See id. at 874. See also United States v. Playboy Entertainment Group, Inc., — U.S.-, 120 S.Ct. 1878, 146 L.Ed.2d 865 (U.S. 2000).

B. COPA

COPA, the present statute, attempts to “address[ ] the specific concerns raised by the Supreme Court” in invalidating the CDA. H.R. Rep. No. 105-775 at 12 (1998); See S.R. Rep. No. 105-225, at 2 (1998). COPA prohibits an individual or entity from:

knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makfing] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors.

47 U.S.C. § 281(a)(1) (emphasis added). As part of its attempt to cure the constitutional defects found in the CDA, Congress sought to define most of COPA’s key terms. COPA attempts, for example, to restrict its scope to material on the Web rather than on the Internet as a whole; 4 to target only those Web communications made for “commercial purposes”; 5 and to limit its scope to only that material deemed “harmful to minors.”

Under COPA, whether material published on the Web is “harmful to minors” is governed by a three-part test, each of which must.be found before liability can attach: 6

*168 (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.

47 U.S.C. § 231(e)(6) (emphasis added). 7 The parties conceded at oral argument that this “contemporary community standards” test applies to those communities within the United States, and not to foreign communities. Therefore, the more liberal community standards of Amsterdam or the more restrictive community standards of Tehran would not impact upon the analysis of whether material is “harmful to minors” under COPA.

COPA also provides Web publishers subject to the statute with affirmative defenses. If a Web publisher “has restricted access by minors to material that is harmful to minors” through the use of a “credit card, debit account, adult access code, or adult personal identification number ... a digital certificate that verifies age ... or by any other reasonable measures that are feasible under available technology,” then no liability will attach to the Web publisher even if a minor should nevertheless gain access to restricted material under COPA. 47 U.S.C. § 231(c)(1). 8 COPA violators face both criminal (maximum fines of $50,000 and a maximum prison term of six months, or both) and civil (fines of up to $50,000 for each day of violation) penalties. 9

C. Overview of the Internet and the World Wide Web

In recent years use of the Internet and the Web has become increasingly common in mainstream society. Nevertheless, because the unique character of these new electronic media significantly affect our opinion today, we briefly review their relevant elements. 10

The Internet is a decentralized, self-maintained networking system that links computers and computer networks around the world, and is capable of quickly transmitting communications. See American Libraries Ass’n v. Pataki, 969 F.Supp. 160, 164 (S.D.N.Y.1997); ACLU v. Reno, 31 F.Supp.2d 473, 481 (E.D.Pa.1999) {“Reno III”). Even though the Internet appears to be a “single, integrated system” from a user’s perspective, in fact no single organization or entity controls the Internet. ACLU v. Reno, 929 F.Supp. 824, 838 (E.D.Pa.1996) (“Reno /”); Reno III, 31 F.Supp.2d at 484. As a result, there is no “centralized point from which individual Web sites or services can be blocked from the Web.” Id. Although estimates are difficult because of the Internet’s rapid *169 growth, it was recently estimated that the Internet connects over 159 countries and more than 109 million users. See ACLU v. Johnson, 194 F.3d 1149, 1153 (10th Cir.1999).

The World Wide Web is a publishing forum consisting of millions of individual “Web sites” each containing information such as text, images, illustrations, video, animation or sounds provided by that site’s creator. See American Libraries, 969 F.Supp. at 166. Some of these Web sites contain sexually explicit material. See Reno III, 31 F.Supp.2d at 484. As a publishing forum, the Web is the best known method of communicating information online. See id. Information is said to be published on the Web as soon as it is made available to others by connecting the publisher’s computer to the Internet. See Reno I, 929 F.Supp. at 844; Reno III, 31 F.Supp.2d at 483. Each site is connected to the Internet by means of certain protocols that permit “the information to become part of a single body of knowledge accessible by all Web visitors.” American Libraries, 969 F.Supp. at 166; Reno III, 31 F.Supp.2d at 483. 11 As a part of this unified body of knowledge, Web pages are all linked together so that the Internet user can freely move from one Web page to another by “clicking” on a “link.” See id. Because the Internet has an “international, geographically-borderless nature,” 12 with the proper software every Web site is accessible to all other Internet users worldwide. See American Libraries, 969 F.Supp. at 166; Reno I, 929 F.Supp. at 837; Reno III, 31 F.Supp.2d at 483-84. Indeed, the Internet “negates geometry ... it is fundamentally and profoundly anti-spatial. You cannot say where it is or describe its memorable shape and proportions or tell a stranger how to get there. But you can find things in it without knowing where they are. The [Internet] is ambient — nowhere in particular and everywhere at once.” Doe v. Roe, 191 Ariz. 313, 955 P.2d 951, 956 (1998).

It is essential to note that under current technology, Web publishers cannot “prevent [their site’s] content from entering any geographic community.” Reno III, 31 F.Supp.2d at 484. As such, Web publishers cannot prevent Internet users ,in certain geographic locales from accessing their site; and in fact the Web publisher will not even know the geographic location of visitors to its site. See American Libraries, 969 F.Supp. at 171. Similarly, a Web publisher cannot modify the content of its site so as to restrict different geographic communities to access of only,certain portions of their site. Thus, once published on the Web, existing technology does not permit the published material to be restricted to particular states or jurisdictions. .i

D. Procedural History ^

On October 22, 1998, the day after COPA was enacted, the American Civil Liberties Union (“ACLU”) brought the present action in the United States District Court for the Eastern District of Pennsylvania, challenging COPA’s constitutionality and seeking to enjoin its enforcement. 13 After granting a temporary *170 restraining order against enforcement of the law on November 20, 1998, the District Court held extensive evidentiary hearings which, on February 1, 1999, resulted in the entry of a preliminary injunction preventing the government from enforcing COPA.

E. District Court’s Findings of Fact

After five days of testimony, the District Court rendered sixty-seven separate findings of fact concerning the Internet, the Web, and COPA’s impact on speech activity in this relatively-new medium. See Reno III, 31 F.Supp.2d at 482-92. It bears noting that none of the parties dispute the District Court’s findings (including those describing the Internet and the Web), nor are any challenged as clearly erroneous. Thus, we accept these findings.

The District Court first rendered findings concerning the physical medium known as the Internet, which it recognized consisted of many different methods of communication, only one of which is the World Wide Web. See Reno III, 31 F.Supp.2d at 482-83. It found that “[o]nce 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 geographical community.” Id.

The Court then made findings as to the costs and burdens COPA imposes on Web publishers and on the adults who seek access to sites covered by COPA. See Reno III, 31 F.Supp.2d at 482-492. As observed earlier, the statute provides for a limited number of defenses for Web publishers. See 47 U.S.C. § 231(c). 14 The Court found that as a technological matter the only affirmative defenses presently available are the implementation of credit card or age verification systems because there is no currently functional digital certificate or other reasonable means to verify age. See Reno III, 31 F.Supp.2d at 487.

With respect to the credit card option, the court found that the cost to Web publishers could range from $300 to “thousands of dollars” (exclusive of transaction fees incurred from each verification). Id. at 488. These costs were also exclusive, according to the court, of the labor and energy that would be required of the Web publisher to implement such a system. Id. This labor and energy would include reorganizing a particular Web site to ensure that material considered “harmful to minors” could only be accessed after passing through a credit card or other age verification system. See id. at 490. With this in mind, the court found, for example, that textual material that consisted primarily of non-sexual material, but also included some content that was “harmful to minors” would also be subject to such age verification systems. See id.

As for age verification systems, the District Court’s findings were more optimistic. The court found that a Web publisher “can sign up for free with Adult Check[one company providing such a service] to accept Adult Check PINs, and a Web site operator can earn commissions of up to 50% to 60% of the fees generated by [their] users.” Id. at 489. The District Court also downplayed the cost (both in price and in energy) that would be incurred by the individual seeking to access “harmful to minors” material on the Web, finding that an Adult Check password could be easily purchased for only $16.95. *171 See id. at 490. 15 The same burdens concerning the reorganization of a particular Web site mentioned above would, of course, equally apply to a Web publisher that elected to utilize a PIN number for age verification.

Either system, according to the District Court, would impose significant residual or indirect burdens upon Web publishers. Most importantly, both credit card and age verification systems require an individual seeking to access material otherwise permissible to adults to reveal personal statistics. Because many adults will choose not to reveal these personal details, those otherwise frequently visited Web sites will experience “a loss of traffic.” Id. at 491. This loss of traffic, in turn, would inflict “economic harm” upon the particular Web site, thus increasing the burden that COPA imposes. Id. ¶ 61.

Finally, the District Court considered whether voluntary parental blocking or filtering software was a less restrictive means by which to achieve the government’s compelling objective of protecting minors from harmful material on the Web. The court found that “[s]uch technology may be downloaded and installed on a user’s home computer at a price of approximately $40.00.” Id. at 492 ¶ 65. The court, however, acknowledged that such software “is not perfect” as it is both over and under inclusive in the breadth of the material that it blocks and filters. See id. ¶ 66. 16

F. District Court’s Conclusions of Law

Initially, the government moved the District Court to dismiss the ACLU’s action insofar as the individuals and entities that it purported to represent were not in danger of prosecution under COPA and therefore lacked standing. In particular, the government asserted that the material placed on plaintiffs’ Web sites was not “harmful to minors” and that each of the plaintiffs were not “engaged in the business” of posting such material for “commercial purposes.” See supra note 13.

The District Court interpreted COPA to impose liability on those Web publishers who profited from Web sites that contained some, even though not all, material that was harmful to minors. See Reno III, 31 F.Supp.2d at 480. The court therefore concluded that the plaintiffs could reasonably fear prosecution because their Web sites contained material “that is sexual in nature.” Id.

Having established plaintiffs’ standing 17 —an analysis with which we agree — the District Court began its First Amendment analysis by stating that insofar as COPA prohibits Web publishers from posting material that is “harmful to minors,” it constitutes a content-based restriction on speech that “is presumptively invalid and is subject to strict scrutiny.” Id. at 493 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 381, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Sable Comm. of Calif. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989)) See also United States v. Playboy Entertainment Group, Inc., — U.S. -, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Pursuant to this strict scrutiny analysis, the District Court held that COPA placed too large a burden on protected expression. In particular, the court found that the high economic costs that *172 Web publishers would incur in implementing an age verification system would cause them to cease publishing such material, and further, that the difficulty in accurately shielding harmful material from minors would lead Web publishers to censor more material than necessary. See id. at 494-95. Moreover, the District Court believed that because of the need to use age verification systems, adults would be deterred from accessing these sites, and that the resulting loss of Web traffic would affect the Web publishers’ abilities to continue providing such communications in the future.

The court then considered whether the government could establish that COPA was the least restrictive and most narrowly tailored means to achieve its compelling objective. See Reno III, 31 F.Supp.2d at 496. The government contends that COPA meets this test because COPA does not “ ‘ban ... the distribution or display of material harmful to minors [but] simply requires the sellers of such material to recast their message so that they are not readily available to children.’ ” Appellant’s Brief at 27 (quoting H.R. Rep. No. 105-775 at 6 (1998)). The court concluded, however, that even if COPA were enforced, children would still be able to access numerous foreign Web sites containing harmful material; that some minors legitimately possess credit cards — thus defeating the effectiveness of this affirmative defense in restricting access by minors; that COPA prohibits a “sweeping category of form of content” instead of limiting its coverage to pictures, images and graphic image files — most often utilized by the adult industry as “teasers” Reno III, 31 F.Supp.2d at 497; and that parental blocking and filtering technology would likely be as effective as COPA while imposing fewer constitutional burdens on free speech. Therefore, the District Court concluded that COPA was not the least restrictive means for the government to achieve its compelling objective of protecting minors from harmful material. Id. at 492. As a result, the court held that the ACLU had shown a substantial likelihood of succeeding on the merits in establishing COPA’s unconstitutionality.

In concluding its analysis, the District Court held that losing First Amendment freedoms, even if only for a moment, constitutes irreparable harm. See id. (citing Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir.1989)). And, in balancing the interests at stake for issuing a preliminary injunction, the District Court concluded that the scale tipped in favor of the ACLU, as the government lacks an interest in enforcing an unconstitutional law. See id. (citing ACLU v. Reno, 929 F.Supp. 824, 849 (E.D.Pa.1996)). Because the ACLU met its burden for a preliminary injunction, the District Court granted its petition.

II. ANALYSIS

In determining whether a preliminary injunction is warranted, we must consider:

(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest.

Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir.1999) (citing ACLU v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471, 1477 n. 2 (3d Cir.1996) (en banc)). We review a district court’s grant of a preliminary injunction according to a three-part standard. Legal conclusions are reviewed de novo, findings of fact are reviewed for clear error, and the “ultimate decision to grant or deny the preliminary injunction” is reviewed for abuse of discretion. See Maldonado v. Houstoun, 157 F.3d 179, 183 (3d Cir.1998), cert. denied, 526 U.S. 1130, 119 S.Ct. 1802, 143 L.Ed.2d 1007 (1999).

*173 A Reasonable ‘probability of success on the merits

We begin our analysis by considering what, for this case, is the most significant prong of the preliminary injunction test — whethei the ACLU met its burden of establishing a reasonable probability of succeeding on the merits in proving that COPA trenches upon the First Amendment to the United States Constitution. Initially, we note that the District Court correctly determined that as a content-based restriction on speech, COPA is “both presumptively invalid and subject to strict scrutiny analysis.” See Reno III, 31 F.Supp.2d at 493. As in all areas of constitutional strict scrutiny jurisprudence, the government must establish that the challenged statute is narrowly tailored to meet a compelling state interest, and that it seeks to protect its interest in a manner that is the least restrictive of protected speech. See, e.g., Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Sable Comm of Calif. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829 (1989). 18 These principles have been emphasized again in the Supreme Court’s most recent opinion, United States v. Playboy Entertainment Group, Inc., — U.S. -, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), where the Court, concerned with the “bleeding” of cable transmissions, held § 505 of the Telecommunications Act of 1996 unconstitutional as violative of the First Amendment.

It is undisputed that the government has a compelling interest in protecting children from material that is harmful to them, even if not obscene by adult standards. See Reno III, 31 F.Supp.2d at 495 (citing Sable, 492 U.S. at 126, 109 S.Ct. 2829 (1989); Ginsberg v. New York, 390 U.S. 629, 639-40, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968)). At issue is whether, in achieving this compelling objective, Congress has articulated a constitutionally permissible means to achieve its objective without curtailing the protected free speech rights of adults. See Reno III, 31 F.Supp.2d at 492 (citing Sable, 492 U.S. at 127, 109 S.Ct. 2829; Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957)). As we have observed, the District Court found that it had not — holding that COPA was not likely to succeed in surviving strict scrutiny analysis. ‘

We base our particular determination- of COPA’s likely unconstitutionality, however, on COPA’s reliance on “contemporary community standards” in the context of the electronic medium of the Web to identify material that is harmful to minors. The overbreadth of COPA’s definition of “harmful to minors” applying a “contemporary community standards” clause — although virtually ignored by the parties and the amicus in their respective *174 briefs but raised by us at oral argument— so concerns us that we are persuaded that this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute. Hence we base our opinion entirely on the basis of the likely unconstitutionality of this clause, even though the District Court relied on numerous other grounds. 19

As previously noted, in passing COPA, Congress attempted to resolve all of the problems raised by the Supreme Court in striking down the CDA as unconstitutional. One concern noted by the Supreme Court was that, as a part of the wholly unprecedented broad coverage of the CDA, “the ‘community standards’ criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.” Reno II, 521 U.S. at 877-78, 117 S.Ct. 2329. We are not persuaded that the Supreme Court’s concern with respect to the “community standards” criterion has been sufficiently remedied by Congress in COPA.

Previously, in addressing the mailing of unsolicited sexually explicit material in violation of a California obscenity statute, the Supreme Court held that the fact-finder must determine whether “ ‘the average person, applying contemporary community standards’ would find the work taken as a whole, [to appeal] to the prurient interest.” Miller v.