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American Civil Liberties Union v. Ashcroft

March 06, 2003


Appealed from the United States District Court for the Eastern District of Pennsylvania (No. CIV.A.98-5591) District Judge: Honorable Lowell A. Reed, Jr.

Before: Nygaard and McKEE, Circuit Judges, and Garth, Senior Circuit Judge

The opinion of the court was delivered by: Garth, Circuit Judge


Originally Argued November 4, 1999

On Remand from the United States Supreme Court (No. 00-1293)

Argued on Remand October 29, 2002


This case comes before us on vacatur and remand from the Supreme Court's decision in Ashcroft v. ACLU, ___ U.S. ___, 122 S. Ct. 1700 (2002), in which the Court held that our decision affirming the District Court's grant of a preliminary injunction against the enforcement of the Child Online Protection Act ("COPA") *fn1 could not be sustained because "COPA's reliance on community standards to identify 'material that is harmful to minors' does not by itself render the statute substantially overbroad for purposes of the First Amendment." Id. at 1713 (emphasis in original). Pursuant to the Supreme Court's instructions in Ashcroft, we have revisited the question of COPA's constitutionality in light of the concerns expressed by the Supreme Court.

Our present review of the District Court's decision and the analysis on which that decision was based does not change the result that we originally had reached, albeit on a ground neither decided nor discussed by the District Court. See ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000) ("Reno III"), vacated and remanded, 122 S. Ct. 1700 (2002). We had affirmed the District Court's judgment granting the plaintiffs a preliminary injunction against the enforcement of COPA because we had determined that COPA's reliance on "community standards" to identify material "harmful to minors" could not meet the exacting standards of the First Amendment. On remand from the Supreme Court, with that Court's instruction to consider the other aspects of the District Court's analysis, we once again will affirm.


COPA, Pub. L. No. 105-277, 112 Stat. 2681 (1998) (codified at 47 U.S.C. § 231), is Congress's second attempt to regulate pornography on the Internet. The Supreme Court struck down Congress's first endeavor, the Communications Decency Act, ("CDA"), on First Amendment grounds. See Reno v. ACLU, 521 U.S. 844 (1997) ("Reno I"). To place our COPA discussion in context, it is helpful to understand its predecessor, the CDA, and the opinion of the Supreme Court which held it to be unconstitutional.


In Reno I, the Supreme Court analyzed the CDA, which prohibited any person from posting material on the Internet that would be considered either indecent or obscene. See Reno I, 521 U.S. at 859. Like COPA, the CDA provided two affirmative defenses to prosecution: (1) the use of a credit card or other age verification system, and (2) any good faith effort to restrict access by minors. See id. at 860.

The Court, in a 7-2 decision, and speaking through Justice Stevens, held that the CDA violated many different facets of the First Amendment. The Court held that the use of the term "indecent," without definition, to describe prohibited content was too vague to withstand constitutional scrutiny. *fn2 Justice Stevens further determined that "[u]nlike the regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial entities . . . . [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. *fn3

In holding that "the breadth of the CDA's coverage is wholly unprecedented," the Court continued by noting that "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." Id. at 877-78.

The Court also discussed the constitutional propriety of the credit card/age verification defenses authorized by the CDA. Utilizing the District Court's findings, the Court held that such defenses would not be 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 determined that the CDA was not narrowly tailored to the Government's purported interest, and "lacks the precision that the First Amendment requires when a statute regulates the content of speech." Id. at 874.


COPA, by contrast, represents an attempt by Congress, having been informed by the concerns expressed by the Supreme Court in Reno I, to cure the problems identified by the Court when it had invalidated the CDA. Thus, COPA is somewhat narrower in scope than the CDA. COPA provides for civil and criminal penalties for an individual who, or entity that, knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors. 47 U.S.C. § 231(a)(1) (emphasis added).

Unfortunately, the recited standard for liability in COPA still contains a number of provisions that are constitutionally infirm. True, COPA, in an effort to circumvent the fate of the CDA, expressly defines most of these key terms. For instance, the phrase "by means of the World Wide Web" is defined as the "placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol." Id. § 231(e)(1). *fn4 As a result, and as is detailed below, COPA does not target all of the other methods of online communication, such as e-mail, newsgroups, etc. that make up what is colloquially known as the "Internet." See ACLU v. Reno, 31 F. Supp. 2d 473, 482-83 (Finding of Fact ¶ 7) (E.D. Pa. 1999) ("Reno II").


Further, only "commercial" publishers of content on the World Wide Web can be found liable under COPA. The statute defines "commercial purposes" as those individuals or entities that are "engaged in the business of making such communications." 47 U.S.C. § 231(e)(2)(A). In turn, a person is "engaged in the business" under COPA if that person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income). Id. § 231(e)(2)(B) (emphasis added).

Individuals or entities therefore can be found liable under COPA if they seek to make a profit from publishing material on the World Wide Web -- thus, individuals who place such material on the World Wide Web solely as a hobby, or for fun, or for other than commercial profiteering are not in danger of either criminal or civil liability.


Furthermore, and of greater importance, is the manner in which the statute defines the content of prohibited material; that is, what type of material is considered "harmful to minors." The House Committee Report that accompanied COPA explains that the statute's definition of the "harmful to minors" test constitutes an attempt to fuse the standards upheld by the Supreme Court in Ginsberg v. New York, 390 U.S. 629 (1968), and Miller v. California, 413 U.S. 15 (1973). *fn5 See H.R. REP. NO. 105-775, at 12-13 (1998).

In particular, whether material published on the World Wide Web is "harmful to minors" is governed by a three-part test, each prong of which must be satisfied before one can be found liable under COPA:

(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). *fn6

This definition follows a formulation similar to that which the Supreme Court articulated in Miller. Importantly, however, whereas Miller applied such standards as related to the average adult, the "harmful to minors" test applies them with respect to minors. *fn7

COPA, as earlier noted, also provides a putative defendant with affirmative defenses. If an individual or entity "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," the individual will not be liable if a minor should access this restricted material. Id. § 231(c)(1). The defense also applies if an individual or entity attempts "in good faith to implement a defense" listed above. Id. § 231(c)(2).


On October 22, 1998, the day after President Clinton signed COPA into law, the American Civil Liberties Union, as well as a number of individuals and entities that publish information on the World Wide Web (collectively, the "plaintiffs" or "ACLU"), brought an action in the United States District Court for the Eastern District of Pennsylvania, challenging the constitutionality of the Act. After five days of testimony, the District Court rendered sixty-eight separate findings of fact concerning the Internet and COPA's impact on speech activity. See Reno II, 31 F. Supp. 2d at 481-92 (Findings of Fact ¶¶ 0-67). These findings were detailed in our original opinion. See Reno III, 217 F.3d at 168-69. We recite only those relevant findings in this opinion when we discuss and analyze the constitutionality of COPA. These findings bind us in this appeal unless found to be clearly erroneous. See Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 406 (2001). None of the parties dispute the accuracy of the findings, and as we recited in Reno III, 217 F.3d at 170, "none of the parties dispute the District Court's findings (including those describing the Internet and Web), nor are any challenged as clearly erroneous."

The District Court granted the plaintiffs' motion for a preliminary injunction against the enforcement of COPA on the grounds that COPA is likely to be found unconstitutional on its face for violating the First Amendment rights of adults. Reno II, 31 F. Supp. 2d at 495. *fn8 In so doing, the District Court applied the familiar four-part test in connection with the issuance of a preliminary injunction. See Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999) (explaining that a preliminary injunction is appropriate where the movant can show (1) a likelihood of success on the merits; (2) irreparable harm without the injunction; (3) a balance of harms in the movant's favor; and (4) the injunction is in the public interest).

In evaluating the likelihood of the plaintiffs' success, the District Court first determined that COPA, as a content-based restriction on protected speech (in this case, non-obscene sexual expression), violated the strict scrutiny test. More specifically, it found that although COPA addressed a compelling governmental interest in protecting minors from harmful material online, it was not narrowly tailored to serve that interest, nor did it provide the least restrictive means of advancing that interest. See Reno II, 31 F. Supp. 2d at 493 (citing Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)).

The District Court then addressed the remaining prongs of the preliminary injunction standard, concluding that a failure to enjoin enforcement of COPA would result in irreparable harm, that the balance of harms favored the plaintiffs because the Government does not have "an interest in the enforcement of an unconstitutional law," and that the public interest was "not served by the enforcement of an unconstitutional law. Indeed, [held the District Court,] . . . the interest of the public is served by preservation of the status quo until such time that this Court may ultimately rule on the merits of plaintiffs' claims at trial." Reno II, 31 F. Supp. 2d at 498.

As a result, the District Court held that the plaintiffs had satisfied the requirements for a preliminary injunction which enjoined the enforcement of COPA.


We affirmed the District Court's holding, but on different grounds. *fn9 See Reno III. We held that the reference to "community standards" in the definition of "material that is harmful to minors" resulted in an overbroad statute. Because the Internet cannot, through modern technology, be restricted geographically, we held that the "community standards" language subjected Internet providers in even the most tolerant communities to the decency standards of the most puritanical.

As a result, we held that even if we were to assign a narrow meaning to the language of the statute or even if we would sever or delete a portion of the statute that is unconstitutional, we could not remedy the overbreadth problems created by the community standards language.

Hence, we affirmed the District Court's preliminary injunction. See id. at 179-81.


The Supreme Court vacated our judgment and remanded the case for further proceedings. The majority opinion, consisting of Parts I, II, and IV of the principal opinion authored by Justice Thomas, was joined by Chief Justice Rehnquist and Justices O'Connor, Scalia, and Breyer. It addressed the "narrow question whether the Child Online Protection Act's . . . use of 'community standards' to identify 'material that is harmful to minors' violates the First Amendment." Ashcroft, 122 S. Ct. at 1703.

After reviewing its decision in Reno I and the two prior decisions in this case, the Supreme Court referred to the "contemporary community standards" language from Miller, as representative of the primary concern in evaluating restrictions on speech: "to be certain that . . . [material] will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person--or indeed a totally insensitive one." Miller, 413 U.S. at 33.

As a result, the Court merely held "that COPA's reliance on community standards to identify 'material that is harmful to minors' does not by itself render the statute substantially overbroad for purposes of the First Amendment." Ashcroft, 122 S. Ct. at 1713 (emphasis in original). The Court was careful, however, not to "express any view as to whether . . . the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely will not survive strict scrutiny analysis once adjudication of the case is completed below." Id. The Court did not vacate the District Court's preliminary injunction. Id. at 1713-14.

In addition to the limited Opinion of the Court, the Ashcroft Court issued a number of other opinions authored and joined by other Justices, each of which is instructive to us on remand.

For example, Part III-B of Justice Thomas' opinion was joined only by Chief Justice Rehnquist and Justices O'Connor and Scalia. That portion of Justice Thomas' opinion explained that we relied too heavily on the Reno I Court's criticism that "the 'community standards' criterion [in the CDA] 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," Ashcroft, 122 S. Ct. at 1709 (opinion of Thomas, J.) (quoting Reno I, 521 U.S. at 877-78), particularly in light of the fact that COPA was drafted to cover a smaller category of communication than the CDA -- namely, communication that appeals to the prurient interest and lacks "serious literary, artistic, political or scientific value to minors." 47 U.S.C. § 231(e)(6)(C).

Moreover, Parts III-A, III-C, and III-D of Justice Thomas' opinion were joined only by Chief Justice Rehnquist and Justice Scalia. Those Parts explained that the consideration of community standards was not invalid simply because providers of material on the Internet are unable to limit the availability of their speech on a geographic basis. He instead pointed out that jurors in different communities are likely to apply their own sensibilities to any consideration of community standards, even national ones. Justice Thomas then concluded that no meaningful distinction existed between the instant case and prior Supreme Court decisions upholding the use of a community standards test with respect to speech transmitted by phone or mail, see Sable (phone); Hamling v. United States, 418 U.S. 87 (1974) (mail), stating that speakers bear the burden of determining their audience, and that those who find themselves disadvantaged by the fact that Internet communications cannot be limited geographically can simply choose a different, more controllable, medium for their communication. See Ashcroft, 122 S. Ct. at 1711-12 (opinion of Thomas, J.).

Justice O'Connor filed an opinion concurring in part and in the judgment. Although she agreed that COPA is not overbroad solely because of its reliance on community standards, she acknowledged the possibility that "the use of local community standards will cause problems for regulation of obscenity on the Internet . . . in future cases." Id. at 1714 (O'Connor, J., concurring). She also disagreed with Justice Thomas' argument in Parts III-C and III-D that the Internet may be treated the same as telephone or mail communications: "[G]iven Internet speakers' inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech . . . may be entirely too much to ask." Id. As a result, Justice O'Connor advocated the adoption of a national standard for regulating Internet obscenity. She noted that Supreme Court precedents do not forbid such a result, and argued that such a standard would be no more difficult or unrealistic to implement than the standard created for the entire state of California in Miller. Id. at 1715.

Justice Breyer filed an opinion concurring in part and in the judgment in which he argued that "Congress intended the statutory word 'community' to refer to the Nation's adult community taken as a whole." Id. (Breyer, J., concurring). This standard would serve the purpose, argued Justice Breyer, of avoiding the difficult question of constitutionality under the First Amendment while experiencing no more "regional variation" than is "inherent in a system that draws jurors from a local geographic area." Id. at 1716.

Justice Kennedy filed an opinion concurring in the judgment, in which he was joined by Justices Souter and Ginsburg. Although Justice Kennedy agreed with us that a community standards factor when applied to the Internet is a greater burden on speech than when applied to the mails or to telephones, he did not agree that the extent of that burden could be ascertained without analyzing the scope of COPA's other provisions. See id. at 1719-20 (Kennedy, J., concurring). More specifically, Justice Kennedy felt that we should consider the effect of the provisions limiting COPA's scope to speech used for commercial purposes and to speech that is harmful to minors when taken "as a whole." See id. at 1720-21. Only after these provisions are analyzed, argued Justice Kennedy, can the true effect of varying community standards be evaluated, and the question of overbreadth be properly addressed.

Finally, Justice Stevens authored a dissenting opinion, in which he reiterated our concerns expressed in Reno III that COPA's community standards factor was itself sufficient to render the statute constitutionally overbroad because communication on the Internet (unlike that through the mails or telephones) may not be restricted geographically. This fact, Justice Stevens claimed, was sufficient to invalidate COPA, particularly in light of the fact that many of the "limiting provisions" (i.e., the prurient interest, the patently offensive and the serious value prongs of the statute) mentioned by Justices Thomas and Kennedy apply only to minors, thereby burdening protected material which should be available to adults. See id. at 1726-27 (Stevens, J., dissenting).

Accordingly, on remand, we must again review the District Court's grant of a preliminary injunction in favor of the plaintiffs. This time, however, we must do so in light of the Supreme Court's mandate that the community standards language is not by itself a sufficient ground for holding COPA constitutionally overbroad. This direction requires an independent analysis of the issues addressed by the District Court in its original opinion. To assist us in this task, we asked the parties for additional submissions addressed to the opinion of the Supreme Court and to authorities filed subsequent to that opinion and since we last addressed COPA in Reno III.


As mentioned above, in order to grant a motion for a preliminary injunction, a district court must address the following four factors:

(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, 171 F.3d at 158 (citing ACLU v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996) (en banc)). We review the District Court's grant of a preliminary injunction in favor of the ACLU to determine "whether the court abused its discretion, committed an obvious error in applying the law, or made a clear mistake in considering the proof." In re Assets of Martin, 1 F.3d 1351, 1357 (3d Cir. 1993) (citing Philadelphia Marine Trade Ass'n v. Local 1291, 909 F.2d 754, 756 (3d Cir. 1990), cert. denied, 498 U.S. 1083 (1991)). *fn10

The most significant and, indeed, the dispositive prong of the preliminary injunction analysis in the instant appeal is whether the plaintiffs bore their burden of establishing that they had a reasonable probability of succeeding on the merits -- that is, whether COPA runs afoul of the First Amendment to the United States Constitution. *fn11

We hold that the District Court did not abuse its discretion in granting the preliminary injunction, nor did it err in ruling that the plaintiffs had a probability of prevailing on the merits of their claim inasmuch as COPA cannot survive strict scrutiny. By sustaining that holding, as we do, we would not then be obliged to answer the question of whether COPA is overly broad or vague. However, in order to "touch all bases" on this remand, we will nevertheless address the overbreadth doctrine with respect to COPA and the related doctrine of vagueness. See infra Part II.B. *fn12 In doing so, we hold that COPA is similarly deficient in that aspect as well.

A. Strict Scrutiny

We turn first, however, to the question of whether COPA may withstand strict scrutiny. Strict scrutiny requires that a statute (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, 492 U.S. at 126.

1. Compelling Interest

The Supreme Court has held that "there is a compelling interest in protecting the physical and psychological well-being of minors." Id. (citing Ginsberg, 390 U.S. at 639-40). The parties agree that the Government's stated interest in protecting minors from harmful material online is compelling. This being so, we proceed to the next question of whether COPA is narrowly tailored to meet that interest.

2. Narrowly Tailored

We hold that the following provisions of COPA are not narrowly tailored to achieve the Government's compelling interest in protecting minors from harmful material and therefore fail the strict scrutiny test: (a) the definition of "material that is harmful to 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.

(a) "Material Harmful to Minors"

We address first the provision defining "material harmful to minors." *fn13 Because COPA's definition of harmful material is explicitly focused on minors, it automatically impacts non-obscene, sexually suggestive speech that is otherwise protected for adults. *fn14 The remaining constitutional question, then, is whether the definition's subsets of "prurient interest" and lacking "serious . . . value for minors" are sufficiently narrowly tailored to satisfy strict scrutiny in light of the statute's stated purpose. We address each of these subsets.

COPA limits its targeted material to that which is designed to appeal to the "prurient interest" of minors. It leaves that judgment, however, to "the average person, applying contemporary ...

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