ACLU v. Atty Gen USA ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-22-2008
ACLU v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 07-2539
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2539
AMERICAN CIVIL LIBERTIES UNION;
ANDROGYNY BOOKS, INC.,
d/b/a A DIFFERENT LIGHT BOOKSTORES;
AMERICAN BOOKSELLERS FOUNDATION
FOR FREE EXPRESSION;
ADDAZI, INC.,
d/b/a CONDOMANIA;
ELECTRONIC FRONTIER FOUNDATION;
ELECTRONIC PRIVACY INFORMATION CENTER;
FREE SPEECH MEDIA;
PHILADELPHIA GAY NEWS;
POWELL'S BOOKSTORES;
SALON MEDIA GROUP, INC.;
PLANETOUT, INC.;
HEATHER CORINNA REARICK;
NERVE.COM, INC.;
AARON PECKHAM, d/b/a URBAN DICTIONARY;
PUBLIC COMMUNICATORS, INC.;
DAN SAVAGE; SEXUAL HEALTH NETWORK
v.
*MICHAEL B. MUKASEY,
in his official capacity
as Attorney General of
the United States
Michael B. Mukasey,
Appellant
*(Substituted as per FRAP 43(b))
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 98-cv-05591)
Honorable Lowell A. Reed, District Judge
Argued June 10, 2008
BEFORE: AMBRO, CHAGARES,
and GREENBERG, Circuit Judges
(Filed: July 22, 2008)
Catherine N. Crump
Aden J. Fine
Christopher A. Hansen (argued)
Benjamin E. Wizner
American Civil Liberties Union
18th Floor
125 Broad Street
New York, NY 10004-0000
2
Christopher R. Harris
Jeroen van Kwawegen
Katherine E. Marshall
Latham & Watkins
885 Third Avenue
Suite 1000
New York, NY 10022-4802
Attorneys for Appellees
Jeffrey S. Bucholtz
Acting Assistant Attorney General
Patrick L. Meehan
United States Attorney
Scott R. McIntosh
United States Department of Justice
Civil Division
Room 7259
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0000
Charles W. Scarborough (argued)
United States Department of Justice
Appellate Section
Room 7244
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0000
Attorneys for Appellant
David P. Affinito
3
Dell’Italia, Affinito, & Santola
18 Tony Galento Plaza
Orange, NJ 07050-0000
Attorneys for Amicus Curiae Morality in Media, Inc.
Steven W. Fitschen
The National Legal Foundation
2224 Virginia Beach Boulevard
Suite 204
Virginia Beach, VA 23454-0000
Attorney for Amicus Curiae National Legal Foundation
Robert Corn-Revere
Davis, Wright & Tremine
1919 Pennsylvania Ave., N.W.
Suite 200
Washington, D.C. 20005-0000
Attorneys for Amici Curiae Article 19, Reporters
Without Borders, and World Press Freedom
John B. Morris, Jr.
Center for Democracy & Technology
1634 I Street, N.W.
Suite 1100
Washington, D.C. 20006-0000
Attorneys for certain amici curiae
4
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on an appeal from
an order of the District Court entered March 22, 2007, finding
that the Child Online Protection Act (“COPA”), 47 U.S.C. §
231, facially violates the First and Fifth Amendments of the
Constitution and permanently enjoining the Attorney General
from enforcing COPA. The Government challenges the District
Court’s conclusions that: (1) COPA is not narrowly tailored to
advance the Government’s compelling interest in protecting
children from harmful material on the World Wide Web
(“Web”); (2) there are less restrictive, equally effective
alternatives to COPA; and (3) COPA is impermissibly
overbroad and vague. We will affirm.
II. FACTS AND PROCEDURAL HISTORY
It is useful at the outset to set forth a short history of the
background of COPA and an explanation of the relationship
between the Web and the Internet. Congress enacted COPA to
protect minors from exposure to sexually explicit material on the
Web. The Web is just one portion of the Internet, which “is an
interactive medium based on a decentralized network of
computers.” American Civil Liberties Union v. Gonzales, 478
5
F. Supp. 2d 775, 781 (E.D. Pa. 2007) (“Gonzales”). “The
Internet may also be used to engage in other activities such as
sending and receiving emails, trading files, exchanging instant
messages, chatting online, streaming audio and video, and
making voice calls.” Id. The District Court described how the
Web functions:
On the Web, a client program called a Web
browser retrieves information from the Internet,
such as Web pages and other computer files using
their network addresses and displays them,
typically on a computer monitor . . . . Web pages,
which can contain, inter alia, text, still and
moving picture files, sound files, and computer
scripts, are often arranged in collections of related
material called Web sites, which consist of one or
more Web pages. . . . It is estimated that there
are between 25 and 64 billion Web pages on the
surface portion of the Web (‘Surface Web’) – that
is, the portion of the Web that is capable of being
indexed by search engines. These Web pages
may be displayed on a monitor screen and, thus,
the content may be seen by anyone operating a
computer or other Internet capable device which
is properly connected to the Internet.
Id. at 781-82 (citations omitted). The District Court indicated
that “[a] little more than 1 percent of all Web pages on the
Surface Web (amounting to approximately 275 million to 700
million Web pages) are sexually explicit.” Id. at 788.
COPA provides for civil and criminal penalties –
including up to six months imprisonment – for anyone who
6
knowingly posts “material that is harmful to minors” on the Web
“for commercial purposes.” 47 U.S.C. § 231(a)(1).
“Intentional” violations result in heavier fines. Id. at §
231(a)(2). “[M]aterial that is harmful to minors” includes any
communication 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). “The term ‘minor’ means any person under
17 years of age.” Id. at § 231(e)(7). A person makes a
communication “for commercial purposes” only if the person
when making the communication “is engaged in the business of
making such communications.” Id. at § 231(e)(2)(A). A person
is “engaged in the business” when the person:
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 . . . . [and] only if the
person knowingly causes [or solicits] the material
that is harmful to minors to be posted on the
7
World Wide Web . . . .
Id. at § 231(e)(2)(B). A Web publisher can assert an affirmative
defense to prosecution under COPA if he or she:
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.
Id. at § 231(c)(1).
Congress enacted COPA after the Supreme Court
declared Congress’s first attempt to protect minors from
exposure to sexually explicit materials on the Web to be
unconstitutional. See Reno v. American Civil Liberties Union,
521 U.S. 844, 117 S. Ct. 2329 (1997) (holding that the
Communications Decency Act violated the First Amendment).
The day after COPA became law on October 21, 1998,
plaintiffs, consisting of speakers, content providers, and users of
the Web, filed this action in the District Court seeking an
injunction barring COPA’s enforcement. On February 1, 1999,
the District Court preliminarily enjoined the Government from
enforcing COPA pending a trial on the merits. American Civil
Liberties Union v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999).
In its opinion the court pointed out, among many other things,
that the plaintiffs suggested that filtering and blocking
technology was an “example of a more efficacious and less
restrictive means to shield minors from harmful materials” than
COPA but that the final determination of whether this was so
8
“must await trial on the merits.” Id. at 497.
The Government appealed but we affirmed the District
Court’s order after concluding that the “community standards”
language in section 231(e)(6)(A) by itself rendered COPA
unconstitutionally overbroad. American Civil Liberties Union
v. Reno, 217 F.3d 162, 173 (3d Cir. 2000) (“ACLU I”). The
Government then sought and obtained certiorari and the
Supreme Court vacated our decision and remanded the case to
us for further proceedings because the Court concluded that the
“community standards” language did not, standing alone, make
the statute unconstitutionally overbroad. Ashcroft v. American
Civil Liberties Union, 535 U.S. 564, 585, 122 S. Ct. 1700, 1713
(2002).
On the remand we ruled that, for a variety of reasons,
COPA was not narrowly tailored to serve the Government’s
compelling interest in preventing minors from being exposed to
harmful material on the Web, was not the least restrictive means
available to effect that interest, and was substantially overbroad.
American Civil Liberties Union v. Ashcroft, 322 F.3d 240, 251-
71 (3d Cir. 2003) (“ACLU II”). Consequently, we again
affirmed the District Court’s order granting the preliminary
injunction. Id. at 271. The Government again sought and
obtained certiorari but this time the Supreme Court affirmed our
decision though it remanded the case to the District Court for a
trial on the merits. The Court contemplated that the record
would be updated on the remand to reflect the then current
technological developments and to account for any changes in
the legal landscape. The Court further directed that the District
Court determine whether Internet content filters are more
effective than enforcement of the COPA restrictions or whether
9
other possible alternatives are less restrictive and more effective
than COPA to effectuate Congress’s intention. Ashcroft v.
American Civil Liberties Union, 542 U.S. 656, 670-73, 124
S. Ct. 2783, 2794-95 (2004).
After a bench trial, the District Court on March 22, 2007,
issued extensive findings of fact, determined that plaintiffs have
standing to maintain this action, and concluded that:
COPA facially violates the First and Fifth
Amendment rights of the plaintiffs because: (1)
COPA is not narrowly tailored to the compelling
interest of Congress; (2) defendant has failed to
meet his burden of showing that COPA is the
least restrictive and most effective alternative in
achieving the compelling interest; and (3) COPA
is impermissibly vague and overbroad.
Gonzales, 478 F. Supp. 2d at 821. The District Court
permanently enjoined the Attorney General and his officers,
agents, employees, and attorneys, and those persons in active
concert or participation with him who received actual notice of
its order, from enforcing or prosecuting matters premised upon
COPA at any time for any conduct. Id.
The Government then filed a timely appeal to this Court.
III. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C. §
1331 and we have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the constitutionality of a federal statute and related
questions of statutory interpretation de novo. Abdul-Akbar v.
10
McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). Although we
generally review a district court’s factual findings for clear
error, “[i]n the First Amendment context, reviewing courts have
a duty to engage in a searching, independent factual review of
the full record.” United States v. Scarfo, 263 F.3d 80, 91 (3d
Cir. 2001). The Supreme Court has emphasized that “an
appellate court has an obligation to ‘make an independent
examination of the whole record’ in order to make sure that ‘the
judgment does not constitute a forbidden intrusion on the field
of free expression.’” Bose Corp. v. Consumers Union of United
States, Inc., 466 U.S. 485, 499, 104 S. Ct. 1949, 1958 (1984)
(quoting New York Times Co. v. Sullivan, 376 U.S. 254,
284-86, 84 S. Ct. 710, 728-29 (1964)).
IV. DISCUSSION
The First Amendment provides that “Congress shall
make no law . . . abridging the freedom of speech, or of the
press . . . .” U.S. Const. amend. I. COPA criminalizes a
category of speech – “harmful to minors” material – that is
constitutionally protected for adults. Because COPA is a
content-based restriction on protected speech, it is
presumptively invalid and the Government bears the burden of
showing its constitutionality. Ashcroft, 542 U.S. at 660, 124
S.Ct. at 2788.
The Government challenges the District Court’s decision
that COPA facially violated plaintiffs’ First Amendment rights
because it was not narrowly tailored to further a compelling
government interest, i.e., was not the least restrictive alternative
to advance that interest, the prevention of minors from being
11
exposed to harmful material on the Web, and was impermissibly
vague and overbroad.1
A. Law-of-the-Case Doctrine
Before we reach the merits of the case, we must address
the effect of our prior decision in ACLU II on this appeal, as the
presence of that decision may make the law-of-the-case doctrine
relevant here. Under the law-of-the-case doctrine, “when a
court decides upon a rule of law, that decision should continue
to govern the same issues in subsequent stages in the same
case.” Christianson v. Colt Indus. Operating Corp., 486 U.S.
800, 816, 108 S. Ct. 2166, 2177 (1988) (quoting Arizona v.
California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391 (1983)).
“This rule of practice promotes the finality and efficiency of the
judicial process by protecting against the agitation of settled
issues.” Id. (citation and quotation marks omitted).
We recently addressed the binding effect that our prior
decisions on legal issues at the preliminary injunction stage on
an earlier appeal in the same case have on later decisions. See
Pitt News v. Pappert, 379 F.3d 96, 104-05 (3d Cir. 2004).
Clearly the nature of the showing that an applicant for a
preliminary injunction must make to obtain relief can present
special difficulties in applying the law-of-the-case doctrine in
later stages of the litigation. In Pitt News we noted that “three
separate rules are relevant” when considering the effect of a
preliminary injunction later in ongoing litigation:
1
The Government, however, does not challenge the District
Court’s determination that plaintiffs have standing to bring this
action.
12
First, it is our Court’s tradition that a panel may
not overrule ‘a holding’ of a prior panel. Second,
it is well established that neither this tradition nor
the law-of-the-case doctrine requires a panel
hearing an appeal from the entry of a final
judgment to follow the legal analysis contained in
a prior panel decision addressing the question
whether a party that moved for preliminary
injunctive relief showed a likelihood of success
on the merits. Third, although a panel
entertaining a preliminary injunction appeal
generally decides only whether the district court
abused its discretion in ruling on the request for
relief and generally does not go into the merits
any farther than is necessary to determine whether
the moving party established a likelihood of
success, a panel is not always required to take this
narrow approach. If a preliminary injunction
appeal presents a question of law and the facts are
established or of no controlling relevance, the
panel may decide the merits of the claim.
Id. at 104-05 (citations and most internal quotation marks
omitted). We explained:
In the typical situation – where the prior panel
stopped at the question of likelihood of success –
the prior panel’s legal analysis must be carefully
considered, but it is not binding on the later panel.
Indeed, particularly where important First
Amendment issues are raised, the later panel has
a duty, in the end, to exercise its own best
13
judgment. On the other hand, if the first panel
does not stop at the question of likelihood of
success and instead addresses the merits, the later
panel, in accordance with our Court’s traditional
practice, should regard itself as bound by the prior
panel opinion.
Id. at 105.
But even if we subsequently conclude that in a particular
case our prior determination ordinarily would bind us, we may
reconsider issues that we previously resolved if any of the
following “extraordinary circumstances” are present: “(1) there
has been an intervening change in the law; (2) new evidence has
become available; or (3) reconsideration is necessary to prevent
clear error or a manifest injustice.” Council of Alternative
Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999) (citing
In re City of Philadelphia Litig., 158 F.3d 711, 718 (3d Cir.
1998)).
In ACLU II we concluded that plaintiffs were likely to
succeed on the merits and thus concluded that the District Court
could grant them a preliminary injunction. Nevertheless we did
not stop our analysis after coming to that conclusion. Instead,
we opined at length on the constitutionality of COPA and
construed a number of terms of the statute. Consequently, the
procedural posture of this case and the scope of our prior
decision has set a foundation for the possible applicability of the
law-of-the-case doctrine here.
Though we will explain in more detail the basis for our
conclusions in ACLU II, for purposes of determining the
binding effect of that decision on this appeal it is enough to note
14
now that we expressly held the following: (1) COPA’s
definitions of “material that is harmful to minors,” and
“commercial purposes” and COPA’s affirmative defenses are
not narrowly tailored to achieve the Government’s compelling
interest in protecting minors from harmful material on the Web,
322 F.3d at 251; (2) filtering software is a less restrictive
alternative than the COPA restrictions to advance the
Government’s compelling interest in preventing minors from
being exposed to harmful material on the Web, id. at 265; (3)
COPA is “substantially overbroad” because of its use of the
terms “material harmful to minors,” “minor,” “commercial
purposes,” and “community standards”; (4) COPA’s affirmative
defenses do not save the statute from sweeping too broadly; and
(5) a narrowing construction of COPA is not available to permit
it to be upheld, id. at 266-71.
In its decision affirming ACLU II, the Supreme Court
expressly declined to consider many of the issues that we had
determined. Specifically, the Court stated:
[W]e agree with the Court of Appeals that the
District Court did not abuse its discretion in
entering the preliminary injunction. Our
reasoning in support of this conclusion, however,
is based on narrower, more specific grounds than
the rationale the Court of Appeals adopted. The
Court of Appeals, in its opinion affirming the
decision of the District Court, construed a number
of terms in the statute, and held that COPA, so
construed, was unconstitutional. None of those
constructions of statutory terminology, however,
were relied on by or necessary to the conclusions
15
of the District Court. Instead, the District Court
concluded only that the statute was likely to
burden some speech that is protected for adults,
which [the Government] does not dispute. As to
the definitional disputes, the District Court
concluded only that [the plaintiffs’] interpretation
was ‘not unreasonable,’ and relied on their
interpretation only to conclude that [the plaintiffs]
had standing to challenge the statute, which,
again, [the Government] does not dispute.
Because we affirm the District Court’s decision to
grant the preliminary injunction for the reasons
relied on by the District Court, we decline to
consider the correctness of the other arguments
relied on by the Court of Appeals.
Ashcroft, 542 U.S. at 665, 124 S.Ct. at 2791 (citations omitted).
The Court then addressed the issue of whether there are less
restrictive alternatives to the COPA restrictions to further the
Government’s compelling interest in COPA’s objective and
stated that “[f]ilters are less restrictive than COPA.” Id. at 667,
124 S.Ct. at 2792. The Court recognized, however, that “there
are substantial factual disputes remaining in the case. . . .
[T]here is a serious gap in the evidence as to the effectiveness of
filtering software. For us to assume, without proof, that filters
are less effective than COPA would usurp the District Court’s
factfinding role.” Id. at 671, 124 S.Ct. at 2794 (citation
omitted). Thus, the Court recognized that restrictiveness and
effectiveness are separate matters. The Court also noted that:
[T]he factual record does not reflect current
technological reality – a serious flaw in any case
16
involving the Internet. The technology of the
Internet evolves at a rapid pace. Yet the
factfindings of the District Court were entered in
February 1999, over five years ago . . . . It is
reasonable to assume that other technological
developments important to the First Amendment
analysis have also occurred during that time.
More and better filtering alternatives may exist
than when the District Court entered its findings.
Id. Accordingly, the Court decided to remand the case to the
District Court for a full trial on the merits to “update and
supplement the factual record to reflect current technological
realities” and “to take account of a changed legal landscape” to
determine if other methods were less restrictive alternatives to
COPA to further the Government’s compelling interest in its
objective. Id. at 672, 124 S.Ct. at 2795.
The Government contends that the portion of our opinion
in ACLU II that goes beyond the Supreme Court’s holding “is
not binding because the Supreme Court’s decision remanding
for further consideration of the question whether filtering is a
less restrictive alternative than COPA contemplates a fresh
examination of all the issues in this case, including the scope of
COPA’s coverage and its efficacy and restrictiveness compared
to filtering.” Appellant’s Letter at 1 (May 30, 2008).2 We
conclude, however, that the Government is incorrect on this
point. The Supreme Court’s decision explicitly left untouched
2
The Government wrote this letter in response to our request
that the parties file supplemental letter briefs on the law-of-the-
case issue.
17
our conclusions in ACLU II other than our decision that filters
are a less restrictive alternative than COPA for advancing the
Government’s compelling interest at stake in this litigation.
Moreover, our other determinations – including our
interpretation of the provisions of COPA and whether they are
narrowly construed or impermissibly overbroad – did not
depend on the factual record and thus would not be implicated
by the evidence developed in the subsequent trial on the merits
in the District Court. Accordingly, those conclusions remain
binding on us now.
The Government also contends that we should reconsider
the issues addressed in ACLU II on the basis of an intervening
change in the law since we decided that case. In this regard it
points to the Supreme Court’s recent decision in United States
v. Williams, 128 S. Ct. 1830 (2008), where the Court found that
the Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003, 18 U.S.C. §
2252A(a)(3)(B), is not overbroad under the First Amendment.
But the Court in Williams merely restated and applied the well-
established legal doctrines of overbreadth and vagueness and did
not change the law applicable to this case. Accordingly, we
conclude that there are not “extraordinary circumstances”
justifying us in departing from our holdings in ACLU II other
than that with respect to filtering.
Now that we have delineated the contours of ACLU II’s
effect on this appeal, we will address the issues the Government
raises. As we consider these issues, we will determine whether,
and if so the extent, that our conclusions in ACLU II are the
law-of-the-case here.
B. Strict Scrutiny
18
First, the Government challenges the District Court’s
decision that COPA is unconstitutional because it does not
survive strict scrutiny, the standard that we apply in this case
inasmuch as COPA is a content-based restriction on speech. See
Turner Broadcasting Sys., Inc. v. Fed. Commc’ns Comm’n, 512
U.S. 622, 642, 114 S. Ct. 2445, 2459 (1994). To survive strict
scrutiny analysis, a statute must: (1) serve a compelling
governmental interest; (2) be narrowly tailored to achieve that
interest; and (3) be the least restrictive means of advancing that
interest. Sable Commc’ns of Cal., Inc. v. Fed. Commc’ns
Comm’n, 492 U.S. 115, 126, 109 S. Ct. 2829, 2836 (1989).
1. Compelling Interest
As we noted above, Congress enacted COPA to protect
minors from exposure to sexually explicit material on the Web.
The Supreme Court has held that “there is a compelling interest
in protecting the physical and psychological well-being of
minors,” Sable, 492 U.S. at 126, 109 S.Ct. at 2836, and the
parties agree that the Government has a compelling interest to
protect minors from exposure to harmful material on the Web.
Inasmuch as we agree with them on that point, we turn to the
question of whether COPA is narrowly tailored to effectuate its
purpose.
2. Narrowly Tailored
As we stated above, to survive a strict scrutiny analysis
COPA must be narrowly tailored to advance a compelling
government interest. In ACLU II, we addressed this issue and
held that the following provisions of COPA are not narrowly
tailored:
(a) the definition of ‘material that is harmful to
19
minors,’ which includes the concept of taking ‘as
a whole’ material designed to appeal to the
‘prurient interest’ of minors; and material which
(when judged as a whole) lacks ‘serious literary’
or other ‘value’ for minors; (b) the definition of
‘commercial purposes,’ which limits the reach of
the statute to persons ‘engaged in the business’
(broadly defined) of making communications of
material that is harmful to minors; and (c) the
‘affirmative defenses’ available to publishers,
which require the technological screening of users
for the purpose of age verification.
ACLU II, 322 F.3d at 251.
First, we addressed why we found that the “taking the
material as a whole” language in COPA’s definition of “material
that is harmful to minors,” was not narrowly tailored. COPA
defines such material to include any matter 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.
47 U.S.C. § 231(e)(6) (emphasis added). We concluded that the
20
taken “as a whole” language, when read in context with other
language in the statute, mandates evaluation of an exhibit on the
Internet in isolation, rather than in context. ACLU II, 322 F.3d
at 253. We explained that:
Because we view such a statute, construed as its
own text unquestionably requires, as pertaining
only to single individual exhibits, COPA
endangers a wide range of communications,
exhibits, and speakers whose messages do not
comport with the type of harmful materials
legitimately targeted under COPA, i.e., material
that is obscene as to minors. Accordingly, while
COPA penalizes publishers for making available
improper material for minors, at the same time it
impermissibly burdens a wide range of speech
and exhibits otherwise protected for adults. Thus,
in our opinion, the Act, which proscribes
publication of material harmful to minors, is not
narrowly tailored to serve the Government’s
stated purpose in protecting minors from such
material.
Id. (citation omitted).
We also explained why we found that “COPA’s
definition of the term ‘minor,’ viewed in conjunction with the
‘material harmful to minors’ test, is not tailored narrowly
enough to satisfy the First Amendment’s requirements.” Id. at
255. COPA defines “minor” as “any person under 17 years of
age.” 47 U.S.C. § 231(e)(7). We stated that the term “thus
21
applies in a literal sense to an infant, a five-year old, or a person
just shy of age seventeen.” ACLU II, 322 F.3d at 254. We
reasoned that “Web publishers would face great uncertainty in
deciding what minor could be exposed to its publication, so that
a publisher could predict, and guard against, potential liability.”
Id. at 255. We explicitly rejected the Government’s argument
that the term “should be read to apply only to normal, older
adolescents,” id. at 254, and stated that under either our
definition or the Government’s proffered definition, “the term
‘minor,’ viewed in conjunction with the ‘material harmful to
minors’ test, is not tailored narrowly enough to satisfy the First
Amendment’s requirements,” id. at 255.
We then proceeded to explain why we found that
“COPA’s purported limitation of liability to persons making
communications ‘for commercial purposes’ does not narrow the
reach of COPA sufficiently.” Id. at 256. COPA states 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 communications,” and that
[t]he term ‘engaged in the business’ means that
the person who makes a communication . . . 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 . .
. . A person may be considered to be engaged in
the business . . . only if the person knowingly
causes [or solicits] the material that is harmful to
minors to be posted on the World Wide Web . . .
.
22
47 U.S.C. § 231(e)(2). We stated that:
we read COPA to apply to Web publishers who
have posted any material that is ‘harmful to
minors’ on their Web sites, even if they do not
make a profit from such material itself or do not
post such material as the principal part of their
business. Under the plain language of COPA, a
Web publisher will be subjected to liability if
even a small part of his or her Web site displays
material ‘harmful to minors.’
ACLU II, 322 F.3d at 256. We stated that this group included
“those persons who sell advertising space on their otherwise
noncommercial Web sites . . . [, including] the Web publisher
who provides free content on his or her Web site and seeks
advertising revenue, perhaps only to defray the cost of
maintaining the Web site.” Id. We also rejected the
Government’s argument that “COPA’s definition of ‘engaged in
the business’ limits liability to those persons who publish
material that is harmful to minors ‘as a regular course of such
person’s business or trade’”:
COPA’s use of the phrase ‘regular course’ does
not narrow the scope of speech covered because
it does not place any limitations on the amount, or
the proportion, of a Web publisher’s posted
content that constitutes such material. Thus, even
if posted material that is harmful to minors
constitutes only a very small, or even
infinitesimal, part of a publisher’s entire Web site,
the publisher may still be subject to liability.
23
Id. at 257.
Finally, we explained why we found that COPA’s
affirmative defenses were not narrowly tailored. As we already
have noted above, a Web publisher can assert an affirmative
defense if it:
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.
47 U.S.C. § 231(c)(1). We first stated that implementation of
the affirmative defenses in COPA “will likely deter many adults
from accessing restricted content, because many Web users are
simply unwilling to provide identification information in order
to gain access to content, especially where the information they
wish to access is sensitive or controversial.” ACLU II, 322 F.3d
at 259 (footnote omitted). For this particular conclusion we
relied on factual findings the District Court made in granting the
preliminary injunction, so to this extent it does not bind us on
this appeal.
Though we are not bound by previous conclusions with
respect to deterrence of adults seeking restricted content, in
ACLU II we reached other conclusions about COPA’s
affirmative defenses that do not depend on the facts as
developed in the District Court, and those conclusions are
binding on us on this appeal. For instance, in ACLU II we
stated that “the affirmative defenses do not provide Web
24
publishers with assurances of freedom from prosecution”
because “‘[a]n affirmative defense applies only after prosecution
has begun, and the speaker must himself prove . . . that his
conduct falls within the affirmative defense.’” Id. at 260
(second alteration in original) (quoting Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 255, 122 S. Ct. 1389, 1404 (2002)). We
also considered the Government’s argument that other cases
dealing with display restrictions have upheld the use of blinder
racks to shield minors from viewing harmful material. We
distinguished those cases because:
[t]he use of ‘blinder racks’ . . . does not create the
same deterrent effect on adults as would COPA’s
credit card or adult verification screens. Blinder
racks do not require adults to compromise their
anonymity in their viewing of material harmful to
minors, nor do they create any financial burden on
the user. Moreover, they do not burden the
speech contained in the targeted publications any
more than is absolutely necessary to shield minors
from its content.
Id. We concluded that “[t]he effect of the affirmative defenses,
as they burden ‘material harmful to minors’ which is
constitutionally protected for adults, is to drive this protected
speech from the marketplace of ideas on the Internet. This type
of regulation is prohibited under the First Amendment.” Id.
In its decision made after the trial on the merits now on
appeal before us, the District Court concluded that COPA is not
narrowly tailored because it is both overinclusive and
25
underinclusive. First, the court determined that COPA is
impermissibly overinclusive because it “prohibits much more
speech than is necessary to further Congress’ compelling
interest. For example, . . . the definitions of ‘commercial
purposes’ and ‘engaged in the business’ apply to an inordinate
amount of Internet speech and certainly cover more than just
commercial pornographers . . . .” Gonzales, 478 F. Supp. 2d at
810 (citations omitted). The court also concluded that COPA is
overinclusive because it “applies to speech that is obscene as to
all minors from newborns to age sixteen, and not just to speech
that is obscene as to older minors . . . .” Id.
The Government contends that COPA is narrowly
tailored because it applies only to commercial pornographers
and only to material that is harmful to “older” minors. But we
addressed and rejected the Government’s arguments in ACLU
II, when we found there is nothing in the text of COPA to limit
its application solely to “commercial pornographers” or to limit
the phrase “material that is harmful to minors” to include
material that only is harmful to “older” minors. See 322 F.3d at
253-57. Our prior decision is binding on these issues on this
appeal.
The District Court also found that COPA is not narrowly
tailored because it is underinclusive. In ACLU II we did not
address whether COPA is impermissibly underinclusive and so
we are free to review this finding on the merits. In its Findings
of Fact, the District Court stated that “a substantial number
(approximately 50 percent) of sexually explicit websites are
foreign in origin.” Gonzales, 478 F. Supp. 2d at 789. The court
then reasoned:
[T]here is a significant amount of sexually
26
explicit material on the Internet which originates
from outside of the United States. . . . [U]nlike
Internet content filters which are able to block
from view unsuitable material regardless of its
origin, COPA has no extra-territorial application.
As a result, . . . COPA is not applicable to a large
amount of material that is unsuitable for children
which originates overseas but is nevertheless
available to children in the United States . . . .
COPA’s lack of extraterritorial application
renders it underinclusive.
Id. at 810-11 (citations omitted). The Government contends that
the District Court erred by construing COPA not to apply to
foreign Web sites, and thus the Government argues that COPA
is not underinclusive.
The problem with the Government’s argument in this
respect is that, as we explain below, the Supreme Court already
has determined that COPA does not apply to foreign Web sites.
But notwithstanding this significant limitation on COPA’s
scope, if we had to pass on the issue we might conclude that
COPA is not unconstitutionally underinclusive. The Supreme
Court has explained the circumstances in which a court may find
that a regulation of speech is impermissibly underinclusive:
[A]n exemption from an otherwise permissible
regulation of speech may represent a
governmental ‘attempt to give one side of a
debatable public question an advantage in
expressing its views to the people.’ First Nat’l
Bank of Boston v. Bellotti, 435 U.S. 765, 785-86,
98 S. Ct. 1407, 1420-21, 55 L. Ed. 2d 707 (1978).
27
Alternatively, through the combined operation of
a general speech restriction and its exemptions,
the government might seek to select the
‘permissible subjects for public debate’ and
thereby to ‘control . . . the search for political
truth.’ Consolidated Edison Co. of N.Y. v. Public
Serv. Comm’n of N.Y., 447 U.S. 530, 538, 100
S. Ct. 2326, 2333, 65 L. Ed. 2d 319 (1980).
City of Ladue v. Gilleo, 512 U.S. 43, 51, 114 S. Ct. 2038, 2043
(1994) (second alteration in original) (footnote omitted). These
quite narrow circumstances are hardly applicable to COPA.
Even though, as the District Court recognized, COPA does not
apply to foreign Web sites, we cannot understand how that
limitation on its scope would “represent a governmental attempt
to give one side of a debatable public question an advantage in
expressing its views to the people . . . [or] to select the
permissible subjects for public debate.” Id. (citations and
quotation marks omitted). There is no evidence in the record of
which we are aware that Congress sought to favor foreign Web
site publishers over domestic Web site publishers when
regulating sexually explicit material on the Web, nor is there any
suggestion in the record that the Government is selecting the
permissible subject for public debate by excluding foreign Web
sites from COPA’s coverage.
In fact, we think that it is likely that Congress would have
desired to place COPA’s restrictions on foreign Web sites
available for access in this country but chose not to do so
because, as the District Court recognized:
[e]nforcement of COPA against overseas Web site
owners would . . . be burdensome and impractical
28
due to the knotty questions of jurisdiction which
arise in the Internet context. Furthermore, even if
a specific foreign Web site had sufficient contacts
with the forum to allow personal jurisdiction, it
could be quite difficult or impossible to ensure
that the offender would obey or could be forced to
obey the judgment of the U.S. court.
Gonzales, 478 F. Supp. 2d at 811. In these circumstances, even
though COPA’s omission of foreign Web sites from its
regulations certainly is relevant in an inquiry into whether it is
the most effective means of advancing the Government’s
compelling interest in COPA’s object, the omission might not
lead us to a conclusion that the statute is impermissibly
underinclusive. After all, as the Court of Appeals for the Eighth
Circuit recently noted, “a limitation on speech that is not all-
encompassing may still be narrowly tailored where the
underinclusivity does not favor a particular viewpoint or
undermine the rationale given for the regulation.” Bowman v.
White, 444 F.3d 967, 983 (8th Cir. 2006).
On the other hand, we might conclude that because
COPA fails to apply to 50% of its purported commercial
pornography targets, we lack the evidence necessary to satisfy
us that Congress had in mind its stated goal of protecting minors
from harmful material on the Web when it passed COPA. It is
not as though Congress is unable to protect minors from harmful
material on foreign Web sites; for instance, Congress could
promote the use of Internet content filters, which do not
discriminate on the basis of geography. COPA’s failure to
protect minors from harmful material on foreign Web sites
might raise the inference that Congress had some ulterior,
29
impermissible motive for passing COPA.
We note, however, that our possible disagreement with
the District Court on this one point would not change our
ultimate decision to affirm its order granting a permanent
injunction, as there are numerous other grounds that require us
to find that COPA is not narrowly tailored and is
unconstitutional. Accordingly, we will refrain from deciding the
matter.
The District Court also found that COPA’s affirmative
defenses “do not aid in narrowly tailoring COPA to Congress’
compelling interest.” Gonzales, 478 F. Supp. 2d at 813.
Specifically, the court found that:
there is no evidence of age verification services or
products available on the market to owners of
Web sites that actually reliably establish or verify
the age of Internet users. Nor is there evidence of
such services or products that can effectively
prevent access to Web pages by a minor.
Id. at 800. The court found that “[t]he rules of payment card
associations in this country prohibit Web sites from claiming
that use of a payment card is an effective method of verifying
age, and prohibit Web site owners from using credit or debit
cards to verify age,” and that “a significant number of minors
have access to [payment cards].” Id. at 801. The court also
reviewed data verification services, which are “non-payment
card-based services that attempt to verify the age or identity of
an individual Internet user,” and found that they are unreliable
because they “cannot determine whether the person entering
information into the Web site is the person to whom the
30
information pertains.” Id. at 802. The court further found that
the minimum information required by a data verification
services company “can easily be circumvented by children who
generally know the first and last name, street address and zip
codes of their parents or another adult.” Id.
The court later explained, “[t]he affirmative defenses
cannot cure COPA’s failure to be narrowly tailored because they
are effectively unavailable. Credit cards, debit accounts, adult
access codes, and adult personal identification numbers do not
in fact verify age. As a result, their use does not, in good faith,
‘restrict [] access’ by minors.” Id. at 811 (second alteration in
original) (quoting 47 U.S.C. § 231(c)(1)(A)).
The court also concluded that COPA’s affirmative
defenses “raise unique First Amendment issues” that make the
statute unconstitutional. Id. at 813. The court found that due to
the fees associated with the use of the procedures enumerated in
all of the affirmative defenses and verification services, “Web
sites . . . which desire to provide free distribution of their
information, will be prevented from doing so.” Id. at 804. The
court also found that:
[f]or a plethora of reasons including privacy and
financial concerns . . . and the fact that so much
Web content is available for free, many Web
users already refuse to register, provide credit
card information, or provide real personal
information to Web sites if they have any
alternative. Because requiring age verification
would lead to a significant loss of users, content
providers would have to either self-censor, risk
prosecution, or shoulder the large financial burden
31
of age verification.
Id. at 805. Moreover, the court found that “many users who are
not willing to access information non-anonymously will be
deterred from accessing the desired information. Web site
owners . . . will be deprived of the ability to provide this
information to those users.” Id. at 806. The court also indicated
that:
[r]equiring Internet users to provide payment card
information or other personally identifiable
information to access a Web site would
significantly deter many users from entering the
site, because Internet users are concerned about
security on the Internet and because Internet users
are afraid of fraud and identity theft on the
Internet.
Id. Based on these findings, the court concluded that:
[t]he affirmative defenses also raise their own
First Amendment concerns. For example, the
utilization of those devices to trigger COPA’s
affirmative defenses will deter listeners, many of
whom will be unwilling to reveal personal and
financial information in order to access content
and, thus, will chill speech. Similarly, the
affirmative defenses also impermissibly burden
Web site operators with demonstrating that their
speech is lawful. Under the COPA regime, Web
site operators are unable to defend themselves
until after they are prosecuted. Moreover, the
affirmative defenses place substantial economic
32
burdens on the exercise of protected speech
because all of them involve significant cost and
the loss of Web site visitors, especially to those
plaintiffs who provide their content for free.
Id. at 812-13 (citations and quotations omitted).
The Government argues that the District Court erred in
rejecting the limiting effect of COPA’s affirmative defenses. It
contends that “[t]he possibility that some minors may have
access to credit cards merely demonstrates that no system of age
verification is foolproof. It does not call into question the
availability of credit card screening as an affirmative defense
that tailors COPA more narrowly.” Appellant’s Br. at 37. The
Government also argues that “the court ignored testimony that
minors do not have access to traditional payment cards under
their own control but simply have access to cards supervised by
adults.” Id.
But the District Court found that even if there is parental
supervision of payment card use, the supervision does not
prevent access to harmful material by minors because parents
“may not be able to identify transactions on sexually explicit
Web sites because the adult nature of such transactions is often
not readily identifiable . . . .” Gonzales, 478 F. Supp. 2d at 802.
In any event, we conclude that the District Court correctly found
that the affirmative defenses are “effectively unavailable”
because they do not actually verify age.
The Government also argues that the District Court
incorrectly determined that the affirmative defenses present their
own First Amendment concerns by imposing undue burdens on
Web publishers due to the high costs of implementing age
33
verification technologies and the loss of traffic that would result
from the use of these technologies. The Government contends
that the:
court’s evaluation of the burdens imposed by
COPA was flawed because the court focused
largely, if not exclusively, on Web publishers who
provide their content for free. Whatever limited
application COPA might have beyond its core
regulation of commercial pornography, the court
erred in evaluating the burdens the statute
imposes based entirely on these marginal cases
and ignoring the heartland of the statute’s
proscriptions, where the burdens are far less
onerous.
Appellant’s Br. at 38-39 (citations and quotations omitted). We
reject this argument. The fact that COPA places burdens on
Web publishers whom the Government does not consider to be
within the “heartland” of the statute does not make those
burdens any less onerous or offensive to the principles of the
First Amendment.
Moreover, there is good reason to believe that COPA
unduly would burden even those Web publishers whom the
Government considers to fall within the “heartland” of the
statute, because the District Court found that those publishers
also will face significant costs to implement the affirmative
defenses and will suffer the loss of legitimate visitors once they
do so. And, contrary to the Government’s suggestion at oral
argument, users would have alternatives to obtain pornography
even if COPA was in effect because, as we already have
indicated and discuss below, COPA does not apply to foreign
34
Web sites. The loss of traffic that would result clearly is an
undue burden on even those Web sites that the Government
contends are in the “heartland” of COPA.
We conclude that the District Court correctly found that
implementation of COPA’s affirmative defenses by a Web
publisher so as to avoid prosecution would involve high costs
and also would deter users from visiting implicated Web sites.
It is clear that these burdens would chill protected speech and
thus that the affirmative defenses fail a strict scrutiny analysis.
The Government contends that nevertheless these
burdens “are no different in kind or degree from the burdens
imposed by state laws regulating the sale and commercial
display of ‘harmful to minors’ materials. . . . [T]he effect of the
statute is simply to requir[e] the commercial pornographer to put
sexually explicit images behind the counter.” Appellant’s Br. at
43 (citations and certain internal quotation marks omitted)
(second alteration in original).
We rejected this argument in ACLU II. See 322 F.3d at
260 (“Blinder racks do not require adults to compromise their
anonymity in their viewing of material harmful to minors, nor
do they create any financial burden on the user. Moreover, they
do not burden the speech contained in the targeted publications
any more than is absolutely necessary to shield minors from its
content.”). Blinder racks do not require adults to pay for speech
that otherwise would be accessible for free, they do not require
adults to relinquish their anonymity to access protected speech,
and they do not create a potentially permanent electronic record.
Blinder racks simply do not involve the privacy and security
concerns that COPA’s affirmative defenses raise, and so the
Government’s attempted analogy is ill-fitting.
35
In sum, after considering our previous conclusions in
ACLU II and our analyses of the issues ACLU II has not
resolved, we are quite certain that notwithstanding Congress’s
laudable purpose in enacting COPA, the Government has not
met its burden of showing that it is narrowly tailored so as to
survive a strict scrutiny analysis and thereby permit us to hold
it to be constitutional.
3. Least Restrictive Alternative
In addition to failing the strict scrutiny test because it is
not narrowly tailored, COPA does not employ the least
restrictive alternative to advance the Government’s compelling
interest in its purpose, the third prong of the three-prong strict
scrutiny test. “A statute that ‘effectively suppresses a large
amount of speech that adults have a constitutional right to
receive and to address to one another . . . is unacceptable if less
restrictive alternatives would be at least as effective in achieving
the legitimate purpose that the statute was enacted to serve.’”
Ashcroft, 542 U.S. at 665, 124 S.Ct. at 2791 (alteration in
original) (quoting Reno, 521 U.S. at 874, 117 S.Ct. at 2346).
“[T]he burden is on the Government to prove that the proposed
alternatives will not be as effective as the challenged statute.”
Id. (citing Reno, 521 U.S. at 874, 117 S.Ct. at 2346). The
Government’s burden is “not merely to show that a proposed
less restrictive alternative has some flaws; its burden is to show
that it is less effective.” Id. at 669, 124 S.Ct. at 2793 (citing
Reno, 521 U.S. at 874, 117 S.Ct. at 2346).
Based on the preliminary injunction record in this case,
the Supreme Court held that “[b]locking and filtering software
is an alternative that is less restrictive than COPA, and, in
addition, likely more effective as a means of restricting
36
children’s access to materials harmful to them.” Id. at 666-67,
124 S.Ct. at 2792. We reached a similar conclusion in ACLU
II. See 322 F.3d at 265.3 After the trial on the merits, the
3
Our opinion in ACLU II is not entirely clear on this point.
We started our discussion of the least restrictive alternative
question by indicating that “[w]e are also satisfied that COPA
does not employ the ‘least restrictive means’ to effect the
Government’s compelling interest in protecting minors.” ACLU
II, 322 F.3d at 261. Then in considering that question in more
detail we discussed filters at length. At one point in the opinion
we stated that “filtering software is a less restrictive alternative
that can allow parents some measure of control over their
children’s access to speech that parents consider inappropriate.”
Id. at 263. At several other points, we also stated that COPA is
not the least restrictive alternative. See id. at 261 (“We are . . .
satisfied that COPA does not employ the ‘least restrictive
means’ to effect the Government’s compelling interest in
protecting minors.”); id. at 265-66 (“The existence of less
restrictive alternatives renders COPA unconstitutional under
strict scrutiny. . . . COPA also fails strict scrutiny because it
does not use the least restrictive means to achieve its ends. . . .
Congress could have, but failed to employ the least restrictive
means to accomplish its legitimate goal . . . .”). Nevertheless we
stated that “[w]e agree with the District Court that the various
blocking and filtering techniques which that Court discussed
may be substantially less restrictive than COPA in achieving
COPA’s objective of preventing a minor’s access to harmful
material.” Id. at 265 (emphasis added). Because of this
statement, we cannot state with certainty that ACLU II squarely
holds that filters are less restrictive than COPA, though it
37
District Court concluded that the Government did not meet its
burden of showing that COPA is the least restrictive effective
alternative for advancing Congress’s compelling interest
because filter software and the Government’s promotion and
support of filter software is a less restrictive effective alternative
to COPA.
The District Court discussed Internet content filters at
length in its Findings of Fact. We will review these findings in
detail, as the need to determine whether filters are more
effective than COPA to effectuate Congress’s purpose in
enacting that statute was the primary reason the Supreme Court
remanded the case. According to the District Court:
Internet content filters (‘filters’) are computer
applications which, inter alia, attempt to block
certain categories of material from view that a
Web browser or other Internet application is
capable of displaying or downloading, including
sexually explicit material. Filters categorize and
block Web sites or pages based on their content.
probably does. Thus, for law-of-the-case purposes, we might
not consider ourselves bound on this appeal by that
determination. Of course, this discussion of whether we
determined that filters are less restrictive than COPA or that
filters only may be less restrictive than COPA is somewhat
academic, for on the appeal of ACLU II the Supreme Court
explicitly addressed this issue and, though remanding the case,
flatly indicated that filters are “less restrictive” than COPA,
Ashcroft, 342 U.S. at 667, 124 S. Ct. at 2792, and that Court’s
conclusions supersede our decision in ACLU II on this point.
38
By classifying a site or page, and refusing to
display it on the user’s computer screen, filters
can be used to prevent children from seeing
material that might be considered unsuitable.
Gonzales, 478 F. Supp. 2d at 789. The court explained:
Filters can be programmed or configured in a
variety of different ways according to, inter alia,
the values of the parents using them and the age
and maturity of their children. . . . [F]ilters can be
set up to restrict materials available on Web pages
and other Internet applications based on numerous
factors including the type of content they contain,
the presence of particular words, the address of
the Web site, the Internet protocol used, or
computer application used. Some filters can also
restrict Internet access based on time of day, day
of week, how long the computer has been
connected to the Internet, or which user is logged
onto a computer.
Id. at 790. The court then described in detail how filters
operate:
Filters use different mechanisms to attempt to
block access to material on the Internet including:
black lists, white lists, and dynamic filtering.
Black lists are lists of URLs or Internet Protocol
(‘IP’) addresses that a filtering company has
determined lead to content that contains the type
of materials its filter is designed to block. White
lists are lists of URLs or IP addresses that a
39
filtering company has determined do not lead to
any content its filter is designed to block, and,
thus, should never be blocked. . . . In addition to
its own black and white lists, filters often give
parents or administrators the option of creating
customized black or white lists. Dynamic
filtering products use artificial intelligence to
analyze Web site content in real-time as it is being
requested and determine whether it should be
blocked by evaluating a number of different parts
of the content, both what the user can actually see
on the Web page, and the various hidden pieces of
information contained with the content that are
part of its software code or script, known as the
‘metadata.’ Among other things, dynamic filters
analyze the words on the page, the metadata, the
file names for images, the URLs, the links on a
page, the size of images, the formatting of the
page, and other statistical pattern recognition
features, such as the spatial patterns between
certain words and images, which can often help
filters categorize content even if the actual words
are not recognized. In addition to analyzing the
content of Web pages, dynamic filters also take
the context of the page into consideration, to
ensure that the determinations are as accurate as
possible. For example, many companies will
develop templates that provide additional context
to teach the software how to recognize certain
contexts-for example, to block the word ‘breast’
when used in combination with the word ‘sexy,’
40
but not when used in combination with the words
‘chicken’ or ‘cancer.’ The software analyzes
context, in part, by utilizing statistical pattern
recognition techniques to identify common
features of acceptable and unacceptable Web
pages, depending on the context in which the
content appears.
Id. at 790-91 (citations omitted). The court found that:
[f]ilters can be used by parents to block material
that is distributed on the Web and on the other
widely used parts of the Internet through
protocols other than HTTP and through other
Internet applications. For example, filters can be
used to block any Internet application, including
email, chat, instant messaging, peer-to-peer file
sharing, newsgroups, streaming video and audio,
Internet television and voice over Internet
protocol (‘VoIP’), and other Internet protocols
such as FTP. In addition to blocking access to
these Internet applications completely, some
products provide parents with the option of
providing limited access to these applications.
For example, instant messaging and email may be
permitted, but some of the filtering products will
only permit the sending and receiving of
messages from certain authorized individuals, and
will block e-mails or instant messages containing
inappropriate words or any images. Filtering
programs can also completely prevent children
from entering or using chat rooms, or some can
41
merely filter out any inappropriate words that
come up during a chat session.
Id. at 791 (citations omitted). The court then described the
flexible nature of filters:
Some filtering programs offer only a small
number of settings, while others are highly
customizable, allowing a parent to make detailed
decisions about what to allow and what to block.
Filtering products do this by, among other things,
enabling parents to choose which categories of
speech they want to be blocked (such as sexually
explicit material, illicit drug information,
information on violence and weapons, and hate
speech) and which age setting they want the
product to apply. . . . Filtering products can be
used by parents even if they have more than one
child. For example, if a family has four children,
many filtering products will enable the parent to
set up different accounts for each child, to ensure
that each child is able to access only the content
that the parents want that particular child to
access.
Id. (citations omitted). The court found that:
[f]iltering products block both Web pages
originating from within the United States and
Web pages originating from outside the United
States. The geographic origin of a Web page is
not a factor in how a filter works because the
filter analyzes the content of the Web page, not
42
the location from which it came.
Id. at 791-92. The court found that “[f]iltering products block
both non-commercial and commercial Web pages.” Id. at 792.
The court also found that:
[i]n addition to their content filtering features,
filtering products have a number of additional
tools to help parents control their children’s
Internet activities. Other tools available to
parents include monitoring and reporting features
that allow supervising adults to know which sites
a minor has visited and what other types of
activities a minor has engaged in online.
Id.
The District Court found that “[f]ilters are widely
available and easy to obtain,” and that “[f]iltering programs are
fairly easy to install, configure, and use and require only
minimal effort by the end user to configure and update.” Id. at
793. The court found that “[i]nstalling and setting up a filter
will usually take a typical computer user no more than ten or
fifteen minutes. The installation and set-up process is not
technically complex and does not require any special training or
knowledge.” Id. at 794. The court then considered the evidence
regarding the effectiveness of filters. It found that:
[f]iltering products have improved over time and
are now more effective than ever before. This is
because, as with all software, the filtering
companies have addressed problems with the
43
earlier versions of the products in an attempt to
make their products better. Another reason the
effectiveness of filtering products has improved is
that many products now provide multiple layers
of filtering. Whereas many filters once only
relied on black lists or white lists, many of
today’s products utilize black lists, white lists, and
real-time, dynamic filtering to catch any
inappropriate sites that have not previously been
classified by the product. There is a high level of
competition in the field of Internet content
filtering. That factor, along with the development
of new technologies, has also caused the products
to improve over time.
Id. at 794-95 (citations omitted).
The District Court then found that:
[o]ne of the features of filtering programs that
adds to their effectiveness is that they have
built-in mechanisms to prevent children from
bypassing or circumventing the filters, including
password protection and other devices to prevent
children from uninstalling the product or
changing the settings. Some products even have
a tamper detection feature, by which they can
detect when someone is trying to uninstall or
disable the product, and then cut off Internet
access altogether until it has been properly
reconfigured. Filtering companies actively take
44
steps to make sure that children are not able to
come up with ways to circumvent their filters.
Filtering companies monitor the Web to identify
any methods for circumventing filters, and when
such methods are found, the filtering companies
respond by putting in extra protections in an
attempt to make sure that those methods do not
succeed with their products.
Id. at 795 (citations omitted). The court also found that “[i]t is
difficult for children to circumvent filters because of the
technical ability and expertise necessary to do so . . . .” Id.
Finally, the court found that “filters generally block about 95%
of sexually explicit material.” Id.
After describing filtering technology, the District Court
concluded that the Government “failed to successfully defend
against the plaintiffs’ assertion that filter software and the
Government’s promotion and support thereof is a less restrictive
alternative to COPA.” Id. at 813. The court reasoned that
“unlike COPA there are no fines or prison sentences associated
with filters which would chill speech. Also unlike COPA, . . .
filters are fully customizable and may be set for different ages
and for different categories of speech or may be disabled
altogether for adult use. As a result, filters are less restrictive
than COPA.” Id. (citations omitted).
The District Court also concluded that the Government
“failed to show that filters are not at least as effective as COPA
at protecting minors from harmful material on the Web.” Id. at
814. The court determined that COPA will not reach sexually
explicit materials on the Web that originate from foreign
sources, its affirmative defenses are not effective, and it is
45
unlikely that COPA will be enforced widely. The court found
that:
filters block sexually explicit foreign material on
the Web, parents can customize filter settings
depending on the ages of their children and what
type of content they find objectionable, and filters
are fairly easy to install and use. . . . [F]ilters are
very effective at blocking potentially harmful
sexually explicit materials.
Id. at 815 (citations omitted). The court concluded that “[e]ven
defendant’s own study shows that all but the worst performing
filters are far more effective than COPA would be at protecting
children from sexually explicit material on the Web . . . .” Id.
The Government does not challenge the District Court’s
factual findings and therefore we need not set forth the evidence
on which the court based its findings. The Government does
contend, however, that the District Court erred in concluding
that filters are a less restrictive alternative because the court
applied a “flawed analytical framework” and that filters cannot
be considered a less restrictive alternative because they are part
of the “status quo.” Appellant’s Br. at 43-44.
But the Supreme Court’s statement on this issue
contravenes the Government’s argument:
In considering this question, a court assumes that
certain protected speech may be regulated, and
then asks what is the least restrictive alternative
that can be used to achieve that goal . . . . The
purpose of the test is to ensure that the speech is
restricted no further than necessary to achieve the
46
goal, for it is important to assure that legitimate
speech is not chilled or punished. For that reason,
the test does not begin with the status quo of
existing regulations, then ask whether the
challenged restriction has some additional ability
to achieve Congress’ legitimate interest. Any
restriction on speech could be justified under that
analysis. Instead, the court should ask whether
the challenged regulation is the least restrictive
means among available, effective alternatives.
Ashcroft, 542 U.S. at 666, 124 S.Ct. at 2791. This reasoning
explains why the Court then instructed the parties to update the
factual record regarding “the effectiveness of filtering software”
so that the District Court could determine whether “filters are
less effective than COPA.” Id. at 671, 124 S.Ct. at 2794.
Accordingly, the Government is incorrect in its assertion that the
District Court applied an erroneous analytical framework.
We agree with the District Court’s conclusion that filters
and the Government’s promotion of filters are more effective
than COPA. The Supreme Court already has written how the
Government could act to promote and support the use of filters:
Congress undoubtedly may act to encourage the
use of filters. We have held that Congress can
give strong incentives to schools and libraries to
use them. It could also take steps to promote their
development by industry, and their use by parents.
It is incorrect, for that reason, to say that filters
are part of the current regulatory status quo. The
need for parental cooperation does not
automatically disqualify a proposed less
47
restrictive alternative. In enacting COPA,
Congress said its goal was to prevent the
‘widespread availability of the Internet’ from
providing ‘opportunities for minors to access
materials through the World Wide Web in a
manner that can frustrate parental supervision or
control.’ COPA presumes that parents lack the
ability, not the will, to monitor what their children
see. By enacting programs to promote use of
filtering software, Congress could give parents
that ability without subjecting protected speech to
severe penalties.
Id. at 669-70, 124 S.Ct. at 2793 (citations omitted).
As the District Court pointed out, filters can be used to
block foreign Web sites, which COPA does not regulate.
Though the Government contends that COPA applies to foreign
Web sites, the Supreme Court already has rejected the
Government’s construction of the statute. In Ashcroft the Court
stated that:
a filter can prevent minors from seeing all
pornography, not just pornography posted to the
Web from America. . . . COPA does not prevent
minors from having access to those foreign
harmful materials. . . . [I]f COPA is upheld, . . .
providers of the materials that would be covered
by the statute simply can move their operations
overseas.
Id. at 667, 124 S.Ct. at 2792. In light of the Supreme Court’s
express conclusion that COPA does not apply to foreign Web
48
sites – a determination that does not depend upon the facts
developed at the later trial in the District Court – we cannot
construe COPA to apply to foreign Web sites.
Given the vast quantity of speech that COPA does not
cover but that filters do cover, it is apparent that filters are more
effective in advancing Congress’s interest, as it made plain it is
in COPA. Moreover, filters are more flexible than COPA
because parents can tailor them to their own values and needs
and to the age and maturity of their children and thus use an
appropriate flexible approach differing from COPA’s “one size
fits all” approach. Finally, the evidence makes clear that,
although not flawless, with proper use filters are highly effective
in preventing minors from accessing sexually explicit material
on the Web.
At oral argument, the Government made much of a study
that found that only 54 percent of parents use filters. But the
Government has neglected the fact that this figure represents a
65 percent increase from a prior study done four years earlier,
which indicates that significantly more families are using filters.
App. at 159-60. Furthermore, the circumstance that some
parents choose not to use filters does not mean that filters are
not an effective alternative to COPA. Though we recognize that
some of those parents may be indifferent to what their children
see, others may have decided to use other methods to protect
their children – such as by placing the family computer in the
living room, instead of their children’s bedroom – or trust that
their children will voluntarily avoid harmful material on the
Internet. Studies have shown that the primary reason that
parents do not use filters is that they think they are unnecessary
because they trust their children and do not see a need to block
49
content. Id. at 160, 164, 278, 1567. The Government simply
has not carried its burden of showing that COPA is a more
effective method than filters in advancing the Government’s
compelling interest as evidenced in COPA.
In addition to being more effective, it is clear that filters
are less restrictive than COPA. As the Supreme Court has
stated:
[f]ilters are less restrictive than COPA. They
impose selective restrictions on speech at the
receiving end, not universal restrictions at the
source. Under a filtering regime, adults without
children may gain access to speech they have a
right to see without having to identify themselves
or provide their credit card information. Even
adults with children may obtain access to the
same speech on the same terms simply by turning
off the filter on their home computers. Above all,
promoting the use of filters does not condemn as
criminal any category of speech, and so the
potential chilling effect is eliminated, or at least
much diminished. All of these things are true,
moreover, regardless of how broadly or narrowly
the definitions in COPA are construed.
Ashcroft, 542 U.S. at 667, 124 S. Ct. at 2792. Although the
Supreme Court made this statement after reviewing the record
from the hearing on the preliminary injunction, the evidence
produced at the trial on the merits confirms the Court’s initial
impression. Unlike COPA, filters permit adults to determine if
and when they want to use them and do not subject speakers to
criminal or civil penalties.
50
During oral argument, the Government contended that
the First Amendment does not prohibit Congress from adopting
a “belt-and-suspenders” approach to addressing the compelling
government interest of protecting minors from accessing
harmful material on the Web, with filters acting as the “belt”
and COPA as the “suspenders.” But as counsel for plaintiffs
correctly pointed out, under the First Amendment, if the belt
works at least as effectively as the suspenders, then the
Government cannot prosecute people for not wearing
suspenders. Here, based on the prior litigation in the Supreme
Court and this Court in ACLU II and the District Court’s
findings on the remand, the Government has not shown that
COPA is a more effective and less restrictive alternative to the
use of filters and the Government’s promotion of them in
effectuating COPA’s purposes. Indeed, we would reach this
conclusion on the basis of either the prior litigation or the
District Court’s findings on the remand. Accordingly, COPA
fails the third prong of a strict scrutiny analysis and is
unconstitutional.
C. Vagueness and Overbreadth
The Government also challenges the District Court’s
decision that COPA facially violates the First and Fifth
Amendments because it is impermissibly vague and overbroad.
1. Vagueness
The Supreme Court recently described the vagueness
doctrine:
Vagueness doctrine is an outgrowth not of the
First Amendment, but of the Due Process Clause
of the Fifth Amendment. A conviction fails to
51
comport with due process if the statute under
which it is obtained fails to provide a person of
ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes
or encourages seriously discriminatory
enforcement. Although ordinarily a plaintiff who
engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as
applied to the conduct of others, we have relaxed
that requirement in the First Amendment context,
permitting plaintiffs to argue that a statute is
overbroad because it is unclear whether it
regulates a substantial amount of protected
speech. But perfect clarity and precise guidance
have never been required even of regulations that
restrict expressive activity.
Williams, 128 S. Ct. at 1845 (citations, quotation marks, and
brackets omitted). The Court further explained:
What renders a statute vague is not the possibility
that it will sometimes be difficult to determine
whether the incriminating fact it establishes has
been proved; but rather the indeterminacy of
precisely what that fact is. Thus, we have struck
down statutes that tied criminal culpability to
whether the defendant’s conduct was ‘annoying’
or ‘indecent’ – wholly subjective judgments
without statutory definitions, narrowing context,
or settled legal meanings.
Id. at 1846.
52
Our discussion in ACLU II of the question of whether
COPA is impermissibly vague was quite limited but in a
footnote we stated that we considered COPA’s use of the term
“minor” as incorporated in COPA’s definition of “material that
is harmful to minors” to be impermissibly vague. We reached
this conclusion because we believed that “a Web publisher will
be forced to guess at the bottom end of the range of ages to
which the statute applies,” and thus will not have “fair notice of
what conduct would subject them to criminal sanctions under
COPA” and “will be deterred from engaging in a wide range of
constitutionally protected speech.” 322 F.3d at 268 n.37.
The District Court on the remand concluded that COPA
is vague for several reasons. First, the court pointed out that
COPA utilizes two different scienter requirements –
“knowingly” and “intentionally” – but does not define either
standard. Gonzales, 478 F. Supp. 2d at 816-17. Second, the
court determined that although Congress intended COPA to
apply solely to commercial pornographers, the phrase
“communication for commercial purposes” as modified by the
phrase “engaged in the business” does not limit COPA’s
application to commercial pornographers. Id. at 817. Thus,
Web publishers that are not commercial pornographers will be
uncertain as to whether they will face prosecution under the
statute, chilling their speech. Id. Third, the court found that the
definition of “minor” as any person under 17 years of age
creates vagueness in COPA because materials that could have
“serious literary, artistic, political, or scientific value” for a 16-
year-old would not necessarily have the same value for a three-
year-old. Id. Thus, Web publishers cannot tell which of these
minors should be considered in deciding the content of their
Web sites. Id. at 817-18. Fourth, the court stated that COPA’s
53
use of the phrase “as a whole” is vague because it is unclear how
that phrase would apply to the Web. Id. at 818.
The Government contends that the District Court erred in
finding COPA impermissibly vague and argues that the statutory
provisions that the District Court concluded rendered the statute
vague instead served to limit the reach of the statute.
We are bound by our conclusion in ACLU II that
COPA’s definition of “minor” renders the statute vague.
Furthermore we agree with the District Court’s conclusion that
COPA’s use of the phrases and terms “communication for
commercial purposes,” “as a whole,” “intentional,” and
“knowing” renders it vague, for the reasons the District Court
stated in its opinion.
2. Overbreadth
The Supreme Court also addressed the First Amendment
overbreadth doctrine in Williams, stating that:
[A] statute is facially invalid if it prohibits a
substantial amount of protected speech. The
doctrine seeks to strike a balance between
competing social costs. On the one hand, the
threat of enforcement of an overbroad law deters
people from engaging in constitutionally
protected speech, inhibiting the free exchange of
ideas. On the other hand, invalidating a law that
in some of its applications is perfectly
constitutional – particularly a law directed at
conduct so antisocial that it has been made
criminal – has obvious harmful effects. In order
to maintain an appropriate balance, we have
54
vigorously enforced the requirement that a
statute’s overbreadth be substantial, not only in an
absolute sense, but also relative to the statute’s
plainly legitimate sweep. Invalidation for
overbreadth is strong medicine that is not to be
casually employed.
128 S. Ct. at 1838 (citations and quotation marks omitted).
In ACLU II we held that COPA is “substantially
overbroad” because:
it places significant burdens on Web publishers’
communication of speech that is constitutionally
protected as to adults and adults’ ability to access
such speech. In so doing, COPA encroaches upon
a significant amount of protected speech beyond
that which the Government may target
constitutionally in preventing children’s exposure
to material that is obscene for minors.
322 F.3d at 266-67. We found that COPA’s definition of
“material harmful to minors” “impermissibly places at risk a
wide spectrum of speech that is constitutionally protected”
because it “calls for evaluation of ‘any material’ on the Web in
isolation.” Id. at 267. Thus, we explained:
an isolated item located somewhere on a Web site
that meets the ‘harmful to minors’ definition can
subject the publisher of the site to liability under
COPA, even though the entire Web page (or Web
site) that provides the context for the item would
be constitutionally protected for adults (and
indeed, may be protected as to minors).
55
Id. We also found that COPA’s definition of “minors” renders
the statute overinclusive because it “broadens the reach of
‘material that is harmful to minors’ under the statute to
encompass a vast array of speech that is clearly protected for
adults – and indeed, may not be obscene as to older minors . . .
. ” Id. at 268. We next found that COPA’s definition of
“commercial purposes” rendered the statute overbroad for the
same reasons that it failed strict scrutiny. Id. at 269.
We also found that “COPA’s application of ‘community
standards’ exacerbates these constitutional problems in that it
further widens the spectrum of protected speech that COPA
affects.” Id. at 270. We stated that “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.” Id. (quoting ACLU I, 217
F.3d at 166). Finally, we found that there was no available
narrowing construction that would make COPA constitutional.
Id. at 270-71. These conclusions bind us here.
The District Court also found that COPA is overbroad for
several reasons. First, the court determined that the vagueness
of the phrases “communication for commercial purposes” and
“engaged in the business” means that COPA could apply to a
wide swath of the Web and thus COPA would prohibit and chill
a substantial amount of constitutionally protected speech for
adults. Gonzales, 478 F. Supp. 2d at 819. Second, because the
definition of “minor” includes any person under 17, Web
publishers do not have fair notice regarding what they can place
on the Web that will not be considered harmful to any minor.
Id. Thus, the definition of “minor” renders COPA overinclusive
because it broadens the statute to encompass a large array of
56
protected speech. Id. Finally, the court found that because the
statute does not reference commercial pornographers, it found
that it could not read such a limitation into the statute to save it
from being overbroad. Id. at 819-20.
The Government claims that COPA is not overbroad, but
it is clear that our prior decision in ACLU II binds us on this
issue. It is apparent that COPA, like the Communications
Decency Act before it, “effectively suppresses a large amount of
speech that adults have a constitutional right to receive and to
address to one another,” Reno, 521 U.S. at 874, 117 S.Ct. at
2346, and thus is overbroad. For this reason, COPA violates the
First Amendment.
V. CONCLUSION
In sum, COPA cannot withstand a strict scrutiny,
vagueness, or overbreadth analysis and thus is unconstitutional.
We reach our result both through the application of the law-of-
the-case doctrine to our determination in ACLU II and on the
basis of our independent analysis of COPA and would reach the
same result on either basis standing alone. For the foregoing
reasons, we will affirm the District Court’s March 22, 2007
order.
57