Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-11-2003

ACLU v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket 99-1324




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"ACLU v. Atty Gen USA" (2003). 2003 Decisions. Paper 688.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/688


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                          PRECEDENTIAL

                                   Filed March 6, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No. 99-1324


        AMERICAN CIVIL LIBERTIES UNION;
 ANDROGYNY BOOKS, INC. d/b/a A DIFFERENT LIGHT
BOOKSTORES; AMERICAN BOOKSELLERS FOUNDATION
    FOR FREE EXPRESSION; ARTNET WORLDWIDE
  CORPORATION; BLACKSTRIPE; ADDAZI INC. d/b/a
 CONDOMANIA; ELECTRONIC FRONTIER FOUNDATION;
 ELECTRONIC PRIVACY INFORMATION CENTER; FREE
   SPEECH MEDIA; INTERNET CONTENT COALITION;
  OBGYN.NET; PHILADELPHIA GAY NEWS; POWELL’S
BOOKSTORE; RIOTGRRL; SALON INTERNET, INC.; WEST
      STOCK, INC.; PLANETOUT CORPORATION
                          v.
     JOHN ASHCROFT, in his official capacity as
   ATTORNEY GENERAL OF THE UNITED STATES,
                                  Appellant

    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.

         Originally Argued November 4, 1999

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

        Argued on Remand October 29, 2002
   BEFORE: NYGAARD and McKEE, Circuit Judges,
         and GARTH, Senior Circuit Judge
             2


(Opinion filed March 6, 2003)

      Robert D. McCallum, Jr.
      Assistant Attorney General
      Patrick L. Meehan
      United States Attorney
      Barbara L. Herwig
      Jacob M. Lewis (Argued)
      Charles W. Scarborough
      Attorneys, Appellate Staff
      Civil Division, Room 9120
      Department of Justice
      601 D Street, N.W.
      Washington, D.C. 20530-0001
      Attorneys for Appellant
      Douglas A. Griffin
      Catherine E. Palmer
      Michele M. Pyle
      Katherine M. Bolger
      Christopher R. Harris
      Latham & Watkins
      885 Third Avenue
      Suite 100
      New York, New York 10022-4802
      Ann E. Beeson (Argued)
      Christopher A. Hansen
      American Civil Liberties Union
       Foundation
      125 Broad Street, 18th Floor
      New York, New York 10004
      John C. Salyer
      American Civil Liberties Union of
       New Jersey Foundation
      P.O. Box 750
      Newark, New Jersey 07101
      Attorneys for Appellee
      American Civil Liberties Union
       3


John C. Salyer
Christopher A. Hansen
Ann E. Beeson
Stefan Presser
American Civil Liberties Union
 of Pennsylvania
125 South Ninth Street, Suite 701
Philadelphia, Pennsylvania 19107
Attorneys for Appellees
Androgyny Books, Inc., d/b/a A
Different Light Bookstores; American
Booksellers Foundation for Free
Expression; Artnet Worldwide;
Blackstripe; Addazi, Inc., d/b/a
Condomania; Electronic Frontier
Foundation; Electronic Privacy
Information Center; Free Speech
Media; Internet Content Coalition;
OBGYN.Net; Philadelphia Gay News;
Powell’s Bookstore; Riotgrrl; Salon
Internet, Inc.; West Stock, Inc.;
Planetout Corporation
David L. Sobel
Electronic Privacy Information
 Center
666 Pennsylvania Ave., S.E.
 Suite 301
Washington, D.C. 20003
Attorney for Appellee
Electronic Privacy Information Center
Lee Tien
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
Attorney for Appellee
Electronic Frontier Foundation
        4


Paul J. McGeady
Mary McNeill
Of counsel
475 Riverside Drive
New York, New York 10115
David P. Affinito
Counsel of Record
Morality in Media, Inc.
American Catholic Lawyers
 Association
Dell’Italia, Affinito, Jerejian
 & Santola
18 Tony Galento Plaza
Orange, New Jersey 07050
Attorneys for Amici Curiae-Appellant
Morality in Media, Inc., American
Catholic Lawyers Association
Bruce A. Taylor
Counsel of Record
Carol A. Clancy
Co-Counsel
National Law Center for Children
 and Families
3819 Plaza Drive
Fairfax, Virginia 22030-2512
James J. West
Local Counsel
105 North Front Street
Harrisburg, Pennsylvania 17101
Attorneys for Amici Curiae-Appellant
John S. McCain, Senator; Dan Coats,
Senator; Thomas J. Bliley,
Representative; Michael G. Oxley,
Representative; James C. Greenwood,
Representative
       5


Janet M. LaRue
Family Research Council
801 G Street, N.W.
Washington, D.C. 20001
Attorney for Amicus
Curiae-Appellants Family Research
Council; Enough is Enough; The
Jewish Policy Center
Paula Bruening
John B. Morris, Jr.
Alan B. Davidson
Center for Democracy & Technology
1634 I Street, N.W., Suite 1100
Washington, D.C. 20006
R. Bruce Rich
Jonathan Bloom
Counsel for the Association of
 American Publishers, Inc.
Weil, Gotshal & Manges LLP
767 Fifth Avenue, 17th Floor
New York, New York 10153
Richard M. Schmidt, Jr.
Kevin M. Goldberg
Counsel for the American Society
 of Newspaper Editors
Cohn and Marks LLP
1920 N. Street, N.W., Suite 300
Washington, D.C. 20036
       6


Burt Joseph
Barsy Joseph and Lichtenstein
Counsel for the Comic book
 Legal Defense Fund
12 W. 15th Street
Chicago Heights, Illinois 60411
Edward J. Black
Jason Mahler
Computer and Communications
 Industry Association
666 11th Street, N.W.
Washington, D.C. 20001
Elliot M. Mincberg
Lawrence S. Ottinger
People for the American
 Way Foundation
2000 M Street, N.W., Suite 400
Washington, D.C. 20036
Lloyd J. Jassin
Law Offices of Lloyd J. Jassin
Counsel for the Publishers
 Marketing Association
The Actor’s Equity Building
1560 Broadway, Suite 400
New York, NY 10036
       7


Bruce W. Sanford
Robert D. Lystad
Bruce D. Brown
Counsel for the Society of
 Professional Journalists
Baker & Hostetler LLP
1050 Connecticut Avenue N.W.,
 Suite 1100
Washington, D.C. 20036
Attorneys for Amicus
Curiae-Appellees The American
Society of Newspaper Editors; The
American Association of Law
Libraries; Bibliobytes, Inc.; The
Center for Democracy & Technology;
The Comic Book Legal Defense Fund;
The Commercial Internet Exchange
Association and PSINET, Inc.;
Freedom to Read Foundation; The
Information Technology Association of
America; Internet Alliance; Magazine
Publishers of America; The National
Association of Recording
Merchandisers; People for the
American Way; Periodical Book
Association; PSINET, Inc.; The
Publishers Marketing Association; The
Recording Industry Association of
America; The Society for Professional
Journalists
                            8


                     Stephen A. Bokat
                     National Chambers Litigation Center
                     1615 H St., N.W.
                     Washington, D.C. 20062
                     Bruce J. Ennis
                     Jenner & Block
                     601 13th Street, N.W.
                     12th Floor
                     Washington, D.C. 20005
                     Attorney Amicus Curiae-Appellee
                     The Chamber of Commerce of
                     the United States of America
                     Bruce J. Ennis
                     Jenner & Block
                     601 13th Street, N.W.
                     12th Floor
                     Washington, D.C. 20005
                     Attorney for Amicus Curiae-Appellee,
                     Internet Education Foundation
                     Carl A. Solano
                     Theresa E. Loscalzo
                     Jennifer Dufault James
                     Joseph T. Lukens
                     Dionna K. Litvin
                     Schnader Harrison Segal &
                      Lewis LLP
                     1600 Market Street, Suite 3600
                     Philadelphia, PA 19103
                     Attorneys for Amicus
                     Curiae-Appellees American Society of
                     Journalists and Authors, et al.


               OPINION OF THE COURT

GARTH, Circuit Judge:
  This case comes before us on vacatur and remand from
the Supreme Court’s decision in Ashcroft v. ACLU, ___ U.S.
                                 9


___, 

(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”)1 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.” 

(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, 

(3d Cir. 2000)
(“Reno III”), vacated and remanded, 

(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.

                                 I.
   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, 

(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.

1. We attach the text of COPA as Appendix A.
                                    10


                                    A.
   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 

. 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 

  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.2 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.” 

  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.” 

2. In particular, the Court cited to discussions of society’s concerns
regarding prison rape and homosexuality — matters that would have
redeeming value, but were nonetheless prohibited by the statute. See 

see also 

(“The general, undefined terms . . . cover large
amounts of non-pornographic material with serious educational or other
value.”).
3. Justice Stevens was referring to the Supreme Court’s decisions in
Ginsberg v. New York, 

(1968), which upheld against a First
Amendment challenge a statute prohibiting the sale to minors of
materials deemed harmful to them (in that case, “girlie” magazines), 

and FCC v. Pacifica Foundation, 

(1978), which
upheld under the First Amendment the FCC’s authority to regulate
certain broadcasts it deemed indecent.
                                  11


  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 

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.” 

                                  B.
  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.” 

As a

4. HTTP, or HyperText Transfer Protocol, has been described as follows:
“Invisible to the user, HTTP is the actual protocol used by the Web
                                   12


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, 

, 482-83 (Finding of Fact ¶ 7) (E.D. Pa. 1999) (“Reno II”).

                                   1.
  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).

(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.

Server and the Client Browser to communicate over the ‘wire.’ In short,
[it is] the protocol used for moving documents around the Internet.”
NEWTON’S TELECOM DICTIONARY 335 (17th ed. 2001).
  Essential concepts that are part of HTTP include (as its name implies)
the idea that files can contain references to other files whose selection
will elicit additional transfer requests.
                                   13


                                   2.
  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, 

(1968), and Miller v. California, 

(1973).5 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

5. As stated earlier, see note 

, Ginsberg upheld a New York
statute prohibiting the sale to persons under seventeen years of age of
material deemed to be obscene to minors, noting that “the concept of
obscenity . . . may vary according to the group to whom the questionable
material is directed.” 

(quoting Bookcase, Inc.
v. Broderick, 

, 671 (N.Y. 1966)). Five years later, the
Supreme Court announced its decision in Miller, which advanced the
familiar three-part test for determining obscenity:
    (a) whether “the average person, applying contemporary community
    standards” would find that the work, taken as a whole, appeals to
    the prurient interest; (b) whether the work depicts or describes, in
    a patently offensive way, sexual conduct specifically defined by the
    applicable state law; and (c) whether the work, taken as a whole,
    lacks serious literary, artistic, political, or scientific value.

(internal citations and quotation omitted).
                                   14


     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).6
  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.7
   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. 

The defense also applies if an individual or entity attempts
“in good faith to implement a defense” listed above. 

                                   C.
   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

6. The statute also provides that material is “harmful to minors” if it is
“obscene.” 47 U.S.C. § 231(e)(6). That part of the definition of material
harmful to minors is not at issue here.
7. Under COPA, a minor is defined as one under age seventeen. See 47
U.S.C. § 231(e)(7).
                                    15


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 

. 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, 

,
406 (2001). None of the parties dispute the accuracy of the
findings, and as we recited in Reno 

,
“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 

.8
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., 

, 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

8. The plaintiffs, however, did not limit their argument before the District
Court to the facial invalidity of COPA with regard to adults. They also
argued that COPA was facially invalid for violating the First Amendment
rights of minors, and that COPA was unconstitutionally vague in
violation of the First and Fifth Amendments. See Reno 

.
                                  16


serve that interest, nor did it provide the least restrictive
means of advancing that interest. See Reno II, 

at 493 (citing Sable Communications of Cal., Inc. v. FCC,

, 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, 

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.

                                  D.
  We affirmed the District Court’s holding, but on different
grounds.9 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.

9. In so doing, however, we also addressed the four preliminary
injunction factors and held that the plaintiffs had met their burden as
to each of the four factors. See Reno 

.
                               17


Hence, we affirmed the District           Court’s   preliminary
injunction. See 

                               E.
  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.” 

.
  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.” 

.
  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.” 

(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.”

did not vacate the District Court’s preliminary
injunction. 

-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
                              18


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,” 

(opinion of Thomas, J.) (quoting Reno 

-
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, 

(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 

(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.”

(O’Connor, J., concurring). She also disagreed
                            19


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.” 

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. 

  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.” 

,
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.”

  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 

(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 

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
                             20


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 

(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.

                             II.
   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 

(citing ACLU v. Black
Horse Pike Reg’l Bd. of Educ., 

, 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
                                    21


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, 

, 1357 (3d Cir. 1993) (citing
Philadelphia Marine Trade Ass’n v. Local 1291, 

, 756 (3d Cir. 1990), cert. denied, 

(1991)).10
  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.11
  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

10. We have jurisdiction pursuant to the Supreme Court’s order
remanding the case to us for further proceedings. See Ashcroft, 122 S.
Ct. at 1714. The plaintiffs have standing to sue because they could all
reasonably fear prosecution under COPA, as their Web sites contained
material that could be considered harmful to minors under the statute.
Reno 

(citing Reno II, 1

at 479).
11. In addition to being the only portion of the preliminary injunction
standard addressed by the Supreme Court in its majority opinion or by
the parties in their briefs before this Court, the probability of success
prong is the only one about which any real debate exists.
   In our earlier opinion in this case, we made clear that “Web publishers
would most assuredly suffer irreparable harm” under COPA, that
preliminary injunctive relief will not result in greater harm to the
Government, as “COPA’s threatened constraint on constitutionally
protected free speech far outweighs the damage that would be imposed
by our failure to affirm this preliminary injunction,” and that preliminary
injunctive relief is in the public interest because “ ‘neither the
Government nor the public generally can claim an interest in the
enforcement of an unconstitutional law.’ ” Reno 

(citation omitted).
                                  22


respect to COPA and the related doctrine of vagueness. See
infra Part II.B.12 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. 

.

                   1.    Compelling Interest
   The Supreme Court has held that “there is a compelling
interest in protecting the physical and psychological well-
being of minors.” 

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.

12. We note that much of our overbreadth analysis overlaps with much
of the strict scrutiny analysis we discuss below.
                                   23


              (a)   “Material Harmful to Minors”
  We address first the provision defining “material harmful
to minors.”13 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.14 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 community standards” and “taking
the material as a whole.”
   As discussed in our initial opinion on the matter, when
contemporary community standards are applied to the
Internet, which does not permit speakers or exhibitors to
limit their speech or exhibits geographically, the statute
effectively limits the range of permissible material under the
statute to that which is deemed acceptable only by the
most puritanical communities. This limitation by definition
burdens speech otherwise protected under the First
Amendment for adults as well as for minors living in more
tolerant settings. See Reno 

.
  This burden becomes even more troublesome when those
evaluating questionable material consider it “as a whole” in
judging its appeal to minors’ prurient interests. As Justice
Kennedy suggested in his concurring opinion, it is
“essential to answer the vexing question of what it means
to evaluate Internet material ‘as a whole,’ when everything
on the Web is connected to everything else.” Ashcroft, 122

13. We note that the text of the statute reads “material that is harmful
to minors.” 47 U.S.C. § 231(e)(6) (emphasis added). For purposes of
brevity, we often refer to this phrase as “material harmful to minors.”
14. Obscene materials are not protected under the First Amendment.
See, e.g., 

(“[O]bscene speech enjoys no First
Amendment 

(internal citation omitted). We agree with
Justice Kennedy’s suggestion, and consider this issue here.
   While COPA does not define what is intended to be
judged “as a whole,” the plain language of COPA’s “harmful
material” definition describes such material as “any
communication, picture, image file, article, recording,
writing, or other matter of any kind” that satisfies the three
prongs of the “material harmful to minors” test: prurient
interest, patently offensive, and serious value. 47 U.S.C.
§ 231(e)(6) (emphasis added). In light of the particularity
and specificity of Congress’s language, Congress had to
mean that each individual communication, picture, image,
exhibit, etc. be deemed “a whole” by itself in determining
whether it appeals to the prurient interests of minors,
because that is the unmistakable manner in which the
statute is drawn.
   The taken “as a whole” language is crucial because the
First Amendment requires the consideration of context. As
Justice Kennedy observed in his concurring opinion in
Ashcroft, the application of the constitutional taken “as a
whole” requirement is complicated in the Internet context:
“It is unclear whether what is to be judged as a whole is a
single image on a Web page, a whole Web page, an entire
multipage Web site, or an interlocking set of Web sites.”

. As the Supreme Court has
recently noted:
    [It is] an essential First Amendment rule [that t]he
    artistic merit of a work does not depend on the
    presence of a single explicit scene. . . . Under Miller,
    the First Amendment requires that redeeming value be
    judged by considering the work as a whole. Where the
    scene is part of the narrative, the work itself does not
    for this reason become obscene, even though the scene
    in isolation might be offensive.
Ashcroft v. Free Speech Coalition, ___ U.S. ___, 

, 1401 (2002) (citation omitted).
  Yet, here the plain meaning of COPA’s text mandates
evaluation of an exhibit on the Internet in isolation, rather
than in context. As such, COPA’s taken “as a whole”
                                    25


definition surely fails to meet the strictures of the First
Amendment.
  By limiting the material to individual expressions, rather
than to an expanded context, we would be hard-pressed to
hold that COPA was narrowly tailored to achieve its
designed purpose. For example, one sexual image, which
COPA may proscribe as harmful material, might not be
deemed to appeal to the prurient interest of minors if it
were to be viewed in the context of an entire collection of
Renaissance artwork. However, evaluating just that one
image or picture or writing by itself rules out a context
which may have alleviated its prurient appeal. As a result,
individual communications that may be a integral part of
an entirely non-prurient presentation may be held to violate
COPA, despite the fact that a completely different result
would obtain if the entire context in which the picture or
communication was evaluated “as a whole.”
   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. See 

.
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.
  Lastly, COPA’s definition of “material that is harmful to
minors” only permits regulation of speech that when “taken
as a whole, lacks serious literary, artistic, political, or
scientific value for minors.” 47 U.S.C. § 231(e)(6)(C)
(emphasis added). COPA defines the term minor as “any
person under 17 [seventeen] years of age.” 

15. The term “minor” appears in both the “prurient interest” and
“patently offensive” prongs of COPA’s “material that is harmful to
minors” definition. See statutory 

Part I.B.2. The problems with
the definition of minor which we identify in this section are applicable to
both these two prongs. As such, these prongs are also constitutionally
infirm on that ground.
                             26


The statute does not limit the term minor in any way, and
indeed, in its briefing, the Government, in complete
disregard of the text, contends that minor means a
“normal, older adolescent.” Orig. Gov’t Br. at 32; Gov’t Br.
on Remand at 27-28; Gov’t Reply Br. on Remand at 4-5.
  We need not suggest how the statute’s targeted
population could be more narrowly defined, because even
the Government does not argue, as it could not, that
materials that have “serious literary, artistic, political or
scientific value” for a sixteen-year-old would have the same
value for a minor who is three years old. Nor does any party
argue, despite Congress’s having targeted and included all
minors seventeen or under, that pre-adolescent minors (i.e.,
ages two, three, four, etc.) could be patently offended by a
“normal or perverted sexual act” or have their “prurient
interest” aroused by a “post-pubescent female breast,” or by
being exposed to whatever other material may be designed
to appeal to prurient interests.
   The term “minor,” as Congress has drafted it, thus
applies in a literal sense to an infant, a five-year old, or a
person just shy of age seventeen. In abiding by this
definition, Web publishers who seek to determine whether
their Web sites will run afoul of COPA cannot tell which of
these “minors” should be considered in deciding the
particular content of their Internet postings. Instead, they
must guess at which minor should be considered in
determining whether the content of their Web site has
“serious . . . value for [those] minors.” 47 U.S.C.
§ 231(e)(6)(C). Likewise, if they try to comply with COPA’s
“harmful to minors” definition, they must guess at the
potential audience of minors and their ages so that the
publishers can refrain from posting material that will
trigger the prurient interest, or be patently offensive with
respect to those minors who may be deemed to have such
interests.
  The Government has argued that “minors” should be
read to apply only to normal, older adolescents. We realize
as a pragmatic matter that some pre-adolescent minors
may, by definition, be incapable of possessing a prurient
interest. It is not clear, however, that the Government’s
proffered definition meets Congress’s intended meaning for
                                    27


the term “minor” with respect to the “patently offensive”
and “serious value” prongs. Furthermore, Congress has
identified as objects of its concern children who cannot be
described as “older” adolescents:
     Moreover, because of sophisticated, yet easy to use
     navigating software, minors who can read and type are
     capable of conducting Web searches as easily as
     operating a television remote. While a four-year old
     may not be as capable as a thirteen year old, given the
     right tools (e.g., a child trackball and browser software)
     each has the ability to ‘surf ’ the Net and will likely be
     exposed to harmful material.
H.R. REP. NO. 105-775, at 9-10 (emphasis added). Moreover,
the statute, if meant to pertain only to normal, older
adolescents (as the Government claims it does), does not by
its own definition restrict its application to older
adolescents, although we assume that Congress could have
defined that universe in that manner.
  Because the plain meaning of the statute’s text is evident,
we decline to rewrite Congress’s definition of “minor.”16 We

16. The Government has cited cases from two other Circuits in support
of its proffered narrowing construction of “minor.” We do not find these
analyses helpful.
  In American Booksellers v. Webb, 

(11th Cir. 1990), cert.
denied, 

(1991), the Eleventh Circuit upheld a Georgia law
restricting the display of material “harmful to minors” in light of the fact
that the use of blinder racks would satisfy the statute’s requirement. 

In analyzing the “harmful to minors” test contained in that
statute, the Eleventh Circuit interpreted the Supreme Court’s opinion in
Pope v. Illinois, 

(1987), to “teach[ ] that if any reasonable
minor, including a seventeen-year-old, would find serious value, the
material is not ‘harmful to minors.’ ” American 

.
   We do not think that Pope leads to the conclusions that the Eleventh
Circuit drew. In Pope, the Court explained that, under the “serious
value” prong of the Miller test for obscenity, “The proper inquiry is not
whether an ordinary member of any given community would find serious
literary, artistic, political, or scientific value in allegedly obscene
material, but whether a reasonable person would find such value in the
material, taken as a whole.” 

(emphasis added).
                                    28


would note, however, that even if we accepted the
Government’s argument, the term “minors” would not be
tailored narrowly enough to satisfy strict scrutiny.
  Regardless of what the lower end of the range of relevant
minors is, Web publishers would face great uncertainty in
deciding what minor could be exposed to its publication, so

It does seem logical that if Pope requires a reasonable person standard
for the “serious value” prong of the Miller test, then an analogous
“serious value for minors” prong of a “harmful to minors” test would look
to the value for a “reasonable minor.” It does not follow, however, that
the “reasonable minor” must be judged by reference to minors at the
upper end of the spectrum of ages encompassed in the term “minor,”
unless the statute is drawn in that particular manner. We are not
persuaded that COPA can be read and enforced that way.
   The Fourth Circuit’s opinion in American Booksellers Ass’n v. Virginia,

(4th Cir. 1989), cert. denied, 

(1990), is
likewise inapplicable. That case dealt with the interpretation of a Virginia
statute prohibiting the display of sexually explicit materials to “juveniles
[less than eighteen years of age].” 

(citing Va. Code § 18.2-
390(6)(c) (1982 & Supp. 1987)). The Fourth Circuit adopted the Virginia
Supreme Court’s interpretation of the state statute: “The Virginia Court
then concluded that the [“serious value”] standard [of the Virginia
statute] should be applied as it affects a ‘legitimate minority of normal,
older adolescents.’ ” 

v. American Booksellers
Ass’n, 

, 624 (Va. 1988)). Of course, the Virginia Supreme
Court’s interpretation of the state statute (a question that had been
certified to the Virginia Court by the Supreme Court, see Virginia v.
American Booksellers Ass’n, 

(1988)), is not binding on our
interpretation of COPA. Hence, there is no reason to adopt or be
persuaded by the statutory construction of the Virginia Supreme Court
in our construction of COPA.
  The Fourth Circuit has recently certified to the Virginia Supreme Court
two questions relating to the scope of a 1999 amendment to the Virginia
statute at issue in American Booksellers Ass’n v. Virginia. See PSINet, Inc.
v. Chapman, 

(4th Cir. 2003) (citing Va. Code § 18.2-391,
1999 Va. Act ch. 936)). Subsequent to oral argument, the Government
submitted a letter pursuant to Federal Rule of Appellate Procedure 28(j)
calling to our attention this order pertaining to the constitutionality of
the 1999 amendment, which extends the regulation of sexually explicit
material deemed “harmful to juveniles” to the Internet context. For the
reasons we have identified, the Fourth Circuit’s certification order has no
bearing on our interpretation of COPA.
                              29


that a publisher could predict, and guard against, potential
liability. Even if the statutory meaning of “minor” were
limited to minors between the ages of thirteen and
seventeen, Web publishers would still face too much
uncertitude as to the nature of material that COPA
proscribes.
  We do not suggest how Congress could have tailored its
statute—that is not our function. We do no more than
conclude that the use of the term “minors” in all three
prongs of the statute’s definition of “material harmful to
minors” is not narrowly drawn to achieve the statute’s
purpose—it is not defended by the Government in the exact
terms of the statute, and does not lend itself to a
commonsense meaning when consideration is given to the
fact that minors range in age from infants to seventeen
years. Therefore, even if we were to accept the narrowing
construction that the Government proposes — and we do
not — 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.

               (b)   “Commercial Purposes”
  COPA’s purported limitation of liability to persons making
communications “for commercial purposes” does not
narrow the reach of COPA sufficiently. Instead, COPA’s
definitions subject too wide a range of Web publishers to
potential liability. As the District Court observed, “There is
nothing in the text of COPA . . . that limits its applicability
to so-called commercial pornographers only.” Reno II, 31 F.
Supp. 2d at 480. Indeed, as we read COPA, it extends to
any Web publisher who makes any communication “for
commercial purposes.” 47 U.S.C. § 231(a)(1).
   The statute includes within “commercial purposes” any
Web publisher who meets COPA’s broad definition of being
“engaged in the business” of making such communications.

The definition of “engaged in the business”
applies to any person whose communication “includes any
material that is harmful to minors” and who “devotes time
. . . to such activities, as a regular course of such person’s
                                   30


trade or business, with the objective of earning a profit,” if
that person “knowingly causes [or solicits] the material that
is harmful to minors to be posted on the World Wide Web.”

(emphasis added).
  Based on this broad definition of “engaged in the
business,” 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.”17
   Moreover, the definition of “commercial purposes” further
expands COPA’s reach beyond those enterprises that sell
services or goods to consumers, including those persons
who sell advertising space on their otherwise non-
commercial Web sites. See Reno II, 

at 487
(Finding of Fact ¶ 33). Thus, the “engaged in the business”
definition would encompass both the commercial
pornographer who profits from his or her online traffic, as
well as 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.18 See

17. As we have explained earlier, see Part 

, COPA’s
definition of material refers to any single “communication, picture,
image, graphic image file, article, recording, writing, or other matter of
any kind.” 47 U.S.C. § 231(e)(6).
18. We do not here confront the question of statutory interpretation
whether the term “profit,” in the context of COPA’s definition of “engaged
in the business,” includes only those Web publishers seeking to earn
economic profits or also includes non-profit organizations or charities
that seek to obtain revenue or contributions — though not economic
profits — from their Web sites. As one amicus brief notes, Congress did
not exempt non-profit organizations as designated under the Internal
Revenue Code. See Br. of Amici Curiae American Society of Journalists
and Authors et al. at 6-7. If the term “profit,” (and therefore the term
“engaged in the business”) includes Web publishers that are non-profit
organizations, the scope of persons covered by COPA would be greatly
expanded. Because of the large number of commercial entities that
maintain Web sites (as found by the District Court), the scope of COPA,
regardless of whether it covers non-profits, is in any event far broader
than the core of commercial pornographers and the like that the
Government has argued that COPA is intended to target.
                              31


also 

(Kennedy, J., concurring)
(“Indeed, the plain text of the Act does not limit its scope to
pornography that is offered for sale; it seems to apply even
to speech provided for free, so long as the speaker merely
hopes to profit as an indirect result.”). The latter model is
a common phenomenon on the Internet. See Reno II, 31 F.
Supp. 2d at 484 (Findings of Fact ¶¶ 23, 30). This
expansive definition of “engaged in the business” therefore
includes a large number of Web publishers. Indeed, the
District Court in its findings of fact cited to testimony that
approximately one-third of the 3.5 million global Web sites
(existing at that time) are “commercial,” or “intend[ed] to
make a profit.” 

(Finding of Fact ¶ 27).
  Contrary to our reading and understanding of COPA, the
Government contends 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,” 47 U.S.C. § 231(e)(2)(B),
claiming that this qualification limits the coverage of COPA.
Based on this language, the Government argues that
“COPA by its terms covers only those ‘harmful to minors’
communications that are made by a person as a normal
part of his or her for-profit business.” Gov’t Br. on Remand
at 36 (internal quotation marks added). Indeed, the
Government contends that COPA “covers only those
communications that have a substantial connection to the
regular online marketing of material that is harmful to
minors.” 

(emphasis added).
   We do not find the Government’s argument persuasive.
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. For example, if a Web site whose content
deals primarily with medical information, but also
“regularly” publishes a bi-weekly column devoted to sexual
matters which could be deemed “harmful to minors,” the
publisher might well be subject to criminal liability under
                             32


COPA. Although such a Web site primarily publishes
medical information that is not “harmful to minors,” the bi-
weekly column, according to the Government’s reading of
COPA, would be a publication in “regular course.”
  In sum, while the “commercial purposes” limitation
makes the reach of COPA less broad than its predecessor,
inasmuch as the Communications Decency Act (CDA) was
not limited to commercial entities, see Reno 

, COPA’s definition of “commercial purposes”
nevertheless imposes content restrictions on a substantial
number of “commercial,” non-obscene speakers in violation
of the First Amendment. We are satisfied that COPA is not
narrowly tailored to proscribe commercial pornographers
and their ilk, as the Government contends, but instead
prohibits a wide range of protected expression.

                (c)   Affirmative Defenses
  The Government argues that COPA’s burdens are limited
and reasonable, and points to COPA’s affirmative defenses
in support of the statute’s constitutionality. We examine
whether the affirmative defenses in COPA serve to tailor the
statute narrowly, as the Government asserts.
   COPA’s affirmative defenses shield Web publishers from
liability under the statute if they, in good faith, restrict
access to material deemed harmful to minors. COPA
provides as follows:
    It is an affirmative defense to prosecution under this
    section that the defendant, in good faith, has restricted
    access by minors to material that is harmful to minors
    —
      (A) by requiring use of a credit card, debit account,
      adult access code, or adult personal identification
      number;
      (B) by accepting a digital certificate that verifies age;
      or
      (C) by any other reasonable measures that are
      feasible under available technology.
                                      33


47 U.S.C. § 231(c)(1).19
  The District Court held that COPA’s affirmative defenses
burdened otherwise protected adult speech in a way that
prevented the statute from surviving strict scrutiny. In
determining that the application of these defenses would
unduly burden protected adult speech, the District Court
concluded that
     Evidence presented to this Court is likely to establish
     at trial that the implementation of credit card or adult
     verification screens in front of material that is harmful
     to minors may deter users from accessing such
     materials and that the loss of users of such material
     may affect the speakers’ economic ability to provide
     such communications. The plaintiffs are likely to
     establish at trial that under COPA, Web site operators
     and content providers may feel an economic
     disincentive to engage in communications that are or
     may be considered to be harmful to minors and thus,
     may self-censor the content of their sites. Further, the
     uncontroverted evidence showed that there is no way
     to restrict the access of minors to harmful materials in
     chat rooms and discussion groups, which the plaintiffs
     assert draw traffic to their sites, without screening all
     users before accessing any content, even that which is
     not harmful to minors, or editing all content before it
     is posted to exclude material that is harmful to minors.
     I conclude that based on the evidence presented to
     date, the plaintiffs have established a substantial
     likelihood that they will be able to show that COPA
     imposes a burden on speech that is protected for
     adults.

19. The District Court found, and the Government does not argue
otherwise, that the “digital certificate” and “other reasonable measures”
are not effective or feasible: “The parties’ expert witnesses agree that at
this time, while it is technologically possible, there is no certificate
authority that will issue a digital certificate that verifies a user’s age. . . .
The plaintiffs presented testimony that there are no other reasonable
alternatives that are technologically feasible at this time to verify age
online. . . . The defendant did not present evidence to the contrary.” Reno
II, 

. at 487-88 (Finding of Fact ¶ 37) (emphasis added)
(internal citations omitted).
                              34


Reno 

(citations omitted).
  The Government maintains that the District Court
overstated the burdens on protected speech created by
utilization of COPA’s affirmative defenses. The record and
our own limited standard of review, however, belie that
claim.
   First, the actual effect on users as a result of COPA’s
affirmative defenses, which the Government minimizes, was
determined by the District Court in its factual findings,
after hearing testimony from both parties. Both the expert
offered by the plaintiffs and one of the experts proffered by
the Government testified that users could be deterred from
accessing the plaintiffs’ Web sites as a result of COPA’s
affirmative defenses. The plaintiffs’ expert went on to testify
that “economic harm . . . would result from loss of traffic.”

(Finding of Fact ¶ 61).
   Although the Government presented its own expert who
testified that “COPA would not impose an unreasonable
economic burden . . . on the seven Web sites of the
plaintiffs,” the District Court, in exercising its fact-finding
function, determined that “plaintiffs have shown that they
are likely to convince the Court that implementing the
affirmative defenses in COPA will cause most Web sites to
lose some adult users to the portions of the sites that are
behind screens.” 

(Findings of Fact ¶¶ 61-62). We
cannot say, nor has the Government claimed, that the
District Court’s factual determination is clearly erroneous.
   COPA’s restrictions on speech, as the District Court has
found and as we agree, are not, as the Government has
argued, analogous to the incidental restrictions caused by
slow response times, broken links, or poor site design that
“already inhibit a user’s . . . experience.” Orig. Gov’t Br. at
42 (citation omitted); Gov’t Br. on Remand at 40-41
(citation omitted). Requiring a user to pay a fee for use of
an adult verification service or to enter personal
information prior to accessing certain material constitutes
a much more severe burden on speech than any technical
difficulties, which are often repairable and cause only
minor delays.
                                     35


  We agree with the District Court’s determination that
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.20 People
may fear to transmit their personal information, and may
also fear that their personal, identifying information will be
collected and stored in the records of various Web sites or
providers of adult identification numbers.21
   The Supreme Court has disapproved of content-based
restrictions that require recipients to identify themselves
affirmatively before being granted access to disfavored
speech, because such restrictions can have an
impermissible chilling effect on those would-be recipients.22

20. The Government’s argument to the contrary is not persuasive. Its
reliance on the success of online publishers such as The Wall Street
Journal, as well as online merchants such as Amazon.com, is misplaced.
The Government noted that those publishers’ and merchants’ Web sites
require persons to provide personal information. See Gov’t Br. on
Remand at 11. Such sites, however, are not analogous to Internet sites
that provide speech that is protected for adults that might nonetheless
be harmful to minors. As the District Court noted in its findings of fact,
certain of the plaintiffs testified that their Web sites contain controversial
or sensitive information that adult readers would be deterred from
obtaining if they were required to register or otherwise identify
themselves. See Reno II, 

at 485-86 (Findings of Fact
¶¶ 25-26).
21. The Government asserts that 47 U.S.C. § 231(d)(1), which limits the
disclosure of “any information collected for the purposes of restricting
access” to material harmful to minors without prior written consent
(subject to exceptions), constitute “substantial privacy protections.” Gov’t
Br. on Remand at 41. But the statute does not appear to impose any
penalties on those who fail to comply with the privacy protection in
§ 231(d)(1). Furthermore, the existence of the statutory privacy protection
does not negate the likelihood that adults will be chilled in accessing
speech protected for them; adults may reasonably fear that their
information will be disclosed, this provision notwithstanding.
22. See, e.g., Lamont v. Postmaster General, 

(1965) (holding
that federal statute requiring Postmaster to halt delivery of communist
propaganda unless affirmatively requested by addressee violated First
Amendment); Denver Area Educ. Telecomms. Consortium v. FCC, 518
                                    36


   Second, the affirmative defenses do not provide the Web
publishers with assurances of freedom from prosecution. As
the Supreme Court noted in Free Speech Coalition, “The
Government raises serious constitutional difficulties by
seeking to impose on the defendant the burden of proving
his speech is not unlawful.” Free Speech Coalition, 122 S.
Ct. at 1404. Although the criminal penalties under the
federal statute concerning virtual child pornography, at
issue in Free Speech Coalition, were more severe than the
penalties under COPA, the logic is applicable: “An
affirmative defense applies only after prosecution has
begun, and the speaker must himself prove . . . that his
conduct falls within the affirmative defense.” 

of the display-restriction cases relied on by
the Government are apposite here, as each involved the use
of blinder racks to shield minors from viewing harmful
material on display. Orig. Gov’t Br. at 43-44; Gov’t Br. on
Remand at 44-45; Gov’t Reply Br. on Remand at 13-14.23

U.S. 727, 732-33 (1996) (holding unconstitutional a federal law requiring
cable operators to allow access to sexually explicit programming only to
those subscribers who request access to the programming in advance
and in writing). Cf. American Library Ass’n v. United States, 

401, 406 (E.D. Pa.) (three-judge court) (holding as unconstitutional
federal statute that conditions receipt of federal funds by public libraries
on use of filtering software because, inter alia, provision requiring adults
to request library to disable filters to access protected speech imposed
too great a burden), prob. juris. noted, 

(2002).
23. See, e.g., Crawford v. Lungren, 

(9th Cir. 1996)
(upholding statute banning sale of material harmful to minors in
unsupervised sidewalk vending machines), cert. denied, 

(1997); Webb, 

(11th Cir. 1990) (upholding statute making
it unlawful to “exhibit, expose, or display in public at newsstands or any
other business or commercial establishment or at any other public place
frequented by minors” material harmful to them); Upper Midwest
Booksellers Ass’n v. City of Minneapolis, 

(8th Cir. 1985)
(upholding an ordinance requiring an opaque cover on and the sealing of
any material deemed harmful to minors and displayed for commercial
purposes); M.S. News Co. v. Casado, 

(10th Cir. 1983)
(upholding a blinder rack ordinance); Davis-Kidd Booksellers, Inc. v.
McWherter, 

(Tenn. 1993) (upholding statute restricting
the display for sale of material harmful to minors “anywhere minors are
lawfully admitted”); American Booksellers Ass’n v. Rendell, 

(Pa. Super. 1984) (upholding statute prohibiting display of sexually
explicit materials where minors could see them).
                             37


The use of “blinder racks,” or some analogous device, 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. We cannot say the same
with respect to COPA’s affirmative defenses.
   The 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. As the
Supreme Court has recently said, “[S]peech within the
rights of adults to hear may not be silenced completely in
an attempt to shield children from it.” Free Speech
Coalition, 122 S. Ct at 1402 (citation omitted). COPA,
though less broad than the CDA, “effectively resembles [a]
ban,” on adults’ access to protected speech; the chilling
effect occasioned by the affirmative defenses results in the
“unnecessarily broad suppression of speech addressed to
adults.” Reno 

.

               3.   Least Restrictive Means
  As we have just explained, COPA is not narrowly tailored
and as such fails strict scrutiny. We are also satisfied that
COPA does not employ the “least restrictive means” to effect
the Government’s compelling interest in protecting minors.
   The Supreme Court has stated that “[i]f a less restrictive
alternative would serve the Government’s purpose, the
legislature must use that alternative.” United States v.
Playboy Entertainment Group, 

, 813 (2000);
see also Reno 

(“[The CDA’s Internet
indecency provisions’] burden on adult speech is
unacceptable if less restrictive alternatives would be at
least as effective in achieving the legitimate purpose that
the statute was enacted to serve”); 

.
                                  38


   The District Court determined, based on its findings of
fact, that COPA would be of limited effectiveness in
achieving its aim. See Reno II, 

at 496 (COPA
has “problems . . . with efficaciously meeting its goal.”). To
reach that conclusion, the District Court relied on its
findings that (1) under COPA children may still be able to
access material deemed harmful to them on “foreign Web
sites, non-commercial sites, and . . . via protocols other
than http,” 

see also 

492 (Findings
of Fact ¶¶ 7-8, 19-20, 66); and (2) that children may be able
to obtain credit cards — either their parents’ or their own
— legitimately and so circumvent the screening
contemplated by COPA’s affirmative defenses. See 

(Finding of Fact ¶ 48).
   We first examine the alternative of blocking and filtering
technology. The District Court described this technology as
follows:
     [B]locking or filtering software may be used to block
     Web sites and other content on the Internet that is
     inappropriate for minors. Such technology may be
     downloaded and installed on a user’s home computer
     at a price of approximately $40.00. Alternatively, it
     may operate on the user’s ISP [(Internet Service
     Provider)]. Blocking technology can be used to block
     access by minors to whole sites or pages within a site.

(Finding of Fact ¶ 65).24 The District Court

24. The Report of the House Committee on Commerce, prepared in
support of COPA, provides a more detailed discussion of this technology:
    In general, blocking or filtering software programs work in
    conjunction with Internet browsers such as Netscape Navigator and
    Microsoft’s Internet Explorer, and are either installed directly onto
    individual computers or onto a host server used with a network of
    computers. Blocking or filtering software could also be installed at
    the site of the Internet access provider. Software to block access to
    websites has existed for many years . . . .
    In order to block Internet sites, a software vendor identifies
    categories of material to be restricted and then configures the
    software to block sites containing those categories of speech. Some
    software blocking vendors employ individuals who browse the
                                  39


concluded that blocking and filtering technology, although
imperfect, “may be at least as successful as COPA would be
in restricting minors’ access to harmful material online
without imposing the burden on constitutionally protected
speech that COPA imposes on adult users.” 

Indeed, the District Court found that blocking and filtering
technology, if installed by parents, would shield minors
from harmful Internet communication occurring within a
broader range of venues than that covered by COPA:
“Blocking and filtering software will block minors from
accessing harmful to minors materials posted on foreign
Web sites, non-profit Web sites, and newsgroups, chat, and
other materials that utilize a protocol other than HTTP.” 

(Finding of Fact ¶ 65).
   The Government, however, argues that filtering software
is not a viable means of protecting children from harmful
material online because it is not nearly as effective as COPA
at protecting minors. The Government offers the following
three reasons for this conclusion: (1) filtering software is
voluntary — it transfers the burden of protecting children
from the source of the harmful material, i.e, the Web
publishers, to the potential victims and their parents; (2)
filtering software is often both over- and underinclusive of
targeted material; and (3) it is more effective to screen
material “prior to it being sent or posted to minors” on the
Internet. See Gov’t Br. on Remand at 47.25

    Internet for sites to block, while others use automated searching
    tools to identify which sites to block. New products are constantly
    being developed, however, that could improve the effectiveness of the
    blocking software. For example, at least one product has been
    designed that is capable of analyzing the content being retrieved by
    the computer. By analyzing the content, rather than a predefined
    list of sites, the product is capable of screening inappropriate
    material from chat rooms, e-mail, attached documents, search
    engines, and web browsers. Such products will help parents and
    educators reduce a minor’s exposure to sexually explicit material.
H.R. REP. NO. 105-775, at 19.
25. We see no need for sustained discussion of the Government’s third
argument. The Government’s assertion that it is more effective to screen
                                    40


   The Government makes much of the notion that the
voluntary use of blocking and filtering software places an
onus on parents. 

concern that the expense
of purchasing and updating such software programs might
‘discourage adults or schools from using them.’ ”) (quoting
H.R. REP. NO. 105-775, at 19-20).
   But the Supreme Court has effectively answered this
contention. The Court stated in Playboy, “A court should
not assume a plausible, less restrictive alternative would be
ineffective; and a court should not presume parents, given
full information, will fail to act.” 

.
The Playboy Court held unconstitutional a federal statutory
provision that required cable operators who provide
channels      primarily     dedicated    to   sexually-oriented
programming to scramble or block those channels
completely, or to “time channel” their transmission, i.e.,
limit their availability to hours between 10 p.m. and 6 a.m.,
when, in Congress’s view, children are unlikely to be
viewing television. By this provision Congress sought to
prevent children’s exposure to content contained on such
channels as a result of “signal bleed.”26
   The Court determined that this provision constituted a
“significant restriction of [protected] communication
between speakers and willing adult listeners.” 

The Court held that this provision failed strict scrutiny
because Congress had available to it an effective, less
restrictive means of achieving its ends. In particular,

material before it is posted on the Internet, is no answer at all. First, we
cannot say that the blocking and filtering technology is sufficiently less
effective than COPA such that the technology could not be considered as
an alternative for purposes of the least restrictive means analysis.
Second, to the extent that the Government relies on pre-screening as the
rationale for claiming that COPA is more effective, the argument proves
too much. It is of course true that Web publishers’ self-censorship will
reduce the potential for communication of material harmful to minors,
but the cost results in an intolerable chilling effect. See Part 

.
26. “Signal bleed” refers to a phenomenon whereby scrambled
programming becomes visible or audible from time to time. 

.
                              41


Congress had provided for an “opt-out” provision whereby
a cable subscriber could request the cable company to
scramble fully or block completely the receipt of sexually
explicit channels. The Court explained that the voluntary
nature of the “opt-out” provision rendered it less restrictive:
“It is no response that voluntary blocking requires a
consumer to take action, or may be inconvenient, or may
not go perfectly every time.” 

Instead, the Court
explained that reliance upon “informed and empowered
parents,” 

was the preferable alternative:
    The regulatory alternative of a publicized [“opt-out”
    provision], which has . . . the choice of an effective
    blocking system, would provide parents the information
    needed to engage in active supervision. The
    government has not shown that this alternative, a
    regime of added communication and support, would be
    insufficient to secure its objective, or that any
    overriding harm justifies its intervention.

  In Fabulous Associates Inc. v. Pennsylvania Public Utility
Commission, 

(3d Cir. 1990), we had held
unconstitutional a Pennsylvania law that required adults to
obtain nine-digit access codes in order to listen to dial-a-
porn messages on their telephones. We held that the
statute was not the least restrictive means of achieving the
state’s interest in protecting minors from such messages
because it required a loss of anonymity on the part of
adults. Although we recognized that pre-blocking would not
protect minors in homes where adult residents had
unblocked the lines, we held that the “responsibility for
making such choices [between individually accessing such
speech and protecting minor dependents from that speech]
is where our society has traditionally placed it — on the
shoulders of the parent.” 

(citing Bolger v. Youngs
Drug Prods. Corp., 

, 73-74 (1983)).
   As with the “opt-out” alternative available in Playboy,
which would allow parents to block sexually-oriented cable
channels effectively, and as with the pre-blocking
alternative described in Fabulous Associates, here filtering
software is a less restrictive alternative that can allow
                                    42


parents some measure of control over their children’s
access to speech that parents consider inappropriate.27
   The Government also argues that the blocking and
filtering software is not as effective as COPA in that it is
both over- and underinclusive. To be sure, blocking and
filtering software may sometimes block too little and
sometimes block too much Internet speech. As the District
Court found, blocking and filtering technology is not perfect
in that “some Web sites that may be deemed inappropriate
for minors may not be blocked while some Web sites that
are not inappropriate for minors may be blocked.” Reno II,

at 492 (Finding of Fact ¶ 66). The District
Court found, however, that no evidence had been presented
“as to the percentage of time that blocking and filtering
technology is over- or underinclusive.” 

District Court, as noted above, determined that blocking
and filtering software could be at least as effective as COPA,
because COPA does not reach “foreign Web sites, non-
commercial sites, and . . . [materials available online] via
protocols other than http.” Reno II, 

at 496.28
  A three-judge court has recently held that a federal law
requiring the use of filtering and blocking software on
computers at libraries that received federal funding violates
the First Amendment. See American Library Ass’n v. United
States, 

401, 406 (E.D. Pa.) (three-judge
court), prob. juris. noted, 

(2002). This
decision does not compel a different result here. In that

27. We recognize that parents may face financial costs in purchasing
such software. See Reno II, 

at 492 (Finding of Fact ¶ 65)
(“Such technology may be downloaded and installed on a user’s home
computer at a price of approximately $40.00.”).
28. The District Court’s findings of fact on which the above conclusions
are based are not clearly erroneous. As we recited earlier, the
Government did not, and does not, contend that the findings are clearly
erroneous. See Reno 

. It follows that both COPA and
blocking and filtering technology are over- and underinclusive in differing
ways, and we agree with the District Court’s conclusion that, as a result,
such technology may be at least as effective as COPA.
  For further discussion of COPA’s overinclusiveness, see our discussion
of overbreadth, infra.
                                   43


case, the American Library court noted that blocking and
filtering technology overblocks and underblocks Internet
content.29 That decision, however, is distinguishable
because, whereas the Act at issue in American Library
involved Government-mandated use of blocking and
filtering software, here we only consider the voluntary use
of such software by parents who have chosen to use this
means to protect their children. We also note that, in
American Library, the Government sought to defend the
legislation at issue by reference to the statute’s “disabling
provision,” which required adults to identify themselves to
librarians in order to disable the filtering software on
library computers, and thus gain unfettered access to the
wide range of speech on the Internet. The court held that
this “disabling provision” created a chilling effect on adult
library patrons’ access to protected speech,30 just as we

29. As the American Library court explained:
    Although [blocking and filtering software] programs are somewhat
    effective in blocking large quantities of pornography, they are blunt
    instruments that not only “underblock,” i.e., fail to block access to
    substantial amounts of content that the library boards wish to
    exclude, but also, central to this litigation, “overblock,” i.e., block
    access to large quantities of material that library boards do not wish
    to exclude and that is constitutionally protected.
American Library, 

at 406.
  In addition, we recognize that a report approved by the governing
board of the National Research Council, by a committee chaired by the
Honorable Dick Thornburgh, four years after COPA was enacted (2002),
similarly concluded that:
    Filters are capable of blocking inappropriate sexually explicit
    material at a high level of effectiveness — if a high rate of
    overblocking is also acceptable. Thus, filters are a reasonable choice
    for risk-averse parents or custodians (e.g., teachers) who place a
    very high priority on preventing exposure to such material and who
    are willing to accept the consequences of such overblocking.
COMMITTEE TO STUDY TOOLS AND STRATEGIES FOR PROTECTING KIDS FROM
PORNOGRAPHY, NATIONAL RESEARCH COUNCIL, YOUTH, PORNOGRAPHY AND THE
INTERNET § 12.1.8 (Dick Thornburgh & Herbert S. Lin eds., 2002),
available at http://www.nap.edu/html/youth_internet/ (last visited Feb.
6, 2003).
30. See American Library, 

at 486 (“By requiring library
patrons affirmatively to request permission to access certain speech
                                     44


have determined that COPA’s affirmative defenses, by
requiring the use of a credit card or adult identification
number, similarly place an impermissible burden on adult
users.
   We 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. We are influenced further in this
conclusion by our reading of the Report of the House
Committee on Commerce, which had advocated the
enactment of COPA. See H.R. REP. NO. 105-775 (1998). That
Report described a number of techniques and/or
alternatives to be used in conjunction with blocking and
filtering software, although the techniques were not adopted
at that time. In each instance, these techniques would
appear to constitute a less restrictive alternative than
COPA’s prescriptions. Moreover, we are at least four years
beyond the technology then considered by the Committee,
and as we had initially observed, “in light of rapidly
developing technological advances, what may now be
impossible to regulate constitutionally may, in the not-too-
distant future, become feasible.” Reno 

.
   Because the techniques and/or alternatives considered
by the Committee (i.e., “tagging,” “domain name zoning,”
etc.), see H.R. REP. NO. 105-775, at 16-20, were not
addressed either by the parties or the District Court, we do
not rely upon them here. We do no more than draw
attention to the fact that other possibly less restrictive
alternatives existed when COPA was enacted and more
undoubtedly will be available in the future — many of
which might well be a less restrictive alternative to COPA.31

singled out on the basis of its content, [the federal law at issue] will deter
patrons from requesting that a library disable filters to allow the patron
to access speech that is constitutionally protected, yet sensitive in
nature.”).
31. Indeed, as the National Research Council’s report noted:
    [T]he problem of protecting children from inappropriate material and
    experiences on the Internet is complex. . . .
                                      45


  The existence of less restrictive alternatives renders
COPA unconstitutional under strict scrutiny. As the
Supreme Court has said:
     “Precision of regulation must be the touchstone in an
     area so closely touching our most precious freedoms.”
     If the State has open to it a less drastic way of
     satisfying its legitimate interests, it may not choose a
     legislative scheme that broadly stifles the exercise of
     fundamental personal liberties . . . and the benefit
     gained must outweigh the loss of constitutionally
     protected rights.
Elrod v. Burns, 

, 363 (1976) (quoting Kusper v.
Pontickes, 

, 59 (1973)).
                                 *     *     *
  In sum, the District Court did not abuse its discretion in
granting the plaintiffs a preliminary injunction on the
grounds that COPA, in failing to satisfy strict scrutiny, had
no probability of success on the merits. COPA is clearly a
content-based restriction on speech. Although it does
purport to serve a compelling governmental interest, it is
not narrowly tailored, and thus fails strict scrutiny. COPA
also fails strict scrutiny because it does not use the least
restrictive means to achieve its ends. The breadth of the
“harmful to minors” and “commercial purposes” text of
COPA, especially in light of applying community standards
to a global medium and the burdens on speech created by
the statute’s affirmative defenses, as well as the fact that
Congress could have, but failed to employ the least

    The effectiveness of technology — based on tools and social and
    educational strategies in practice, should be examined and
    characterized. Chapter 12 [of this Report] discussed one aspect of
    evaluating the performance of filters, based on a “head-to-head”
    comparison of how filters performed in blocking inappropriate
    materials. But protection of children is a holistic enterprise that
    must account for the totality of their Internet experience — which
    suggests the need for a examination of all of the tools in all of the
    venues in which children use the Internet.
YOUTH, PORNOGRAPHY   AND THE   INTERNET, supra note 29, at § 14.6.
                                   46


restrictive means to accomplish its legitimate goal,
persuade us that the District Court did not abuse its
discretion in preliminarily enjoining the enforcement of
COPA.

                          B.   Overbreadth
  Though the Supreme Court held in Ashcroft that COPA’s
reliance on community standards did not alone render the
statute overbroad, the Court specifically declined to
“express any view as to whether COPA suffers from
substantial overbreadth for other reasons [or] whether the
statute is unconstitutionally vague,” instead explaining that
“prudence dictates allowing the Court of Appeals to first
examine these difficult issues.” 

. In this Part, therefore, we discuss whether COPA is
substantially overbroad, and hold that it is.32
  In Broadrick v. Oklahoma, 

(1973), the
Supreme Court ruled that a statute that burdens otherwise
protected speech is facially invalid if that burden is not only
real, but “substantial as well, judged in relation to the
statute’s plainly legitimate sweep.” 

As the Court
has recently stated, “The overbreadth doctrine prohibits the
Government from banning unprotected speech if a
substantial amount of protected speech is prohibited or
chilled in the process.” Free Speech 

.33

32. The Supreme Court has explained that it has “traditionally viewed
vagueness and overbreadth as logically related and similar doctrines.”
Kolender v. Lawson, 

, 358 n.8 (citing Keyishian v. Board of
Regents, 

, 609 (1967); NAACP v. Button, 

, 433
(1963)). We consider an aspect of the statute that we consider vague in
note 37, infra.
33. In assessing facial challenges of overbreadth, as we do here, the
courts have “altered [their] traditional rules of standing to permit — in
the First Amendment area — ‘attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his
own conduct could not be regulated by a statute drawn with the
requisite narrow specificity.’ ” 

(quoting
Dombrowski v. Pfister, 

, 486 (1965)). This exception to
traditional rules of standing “is deemed necessary because persons
                                    47


  Our analysis of whether COPA is overbroad is akin to the
portion of the strict scrutiny analysis we have conducted in
which we concluded that COPA is not narrowly tailored.
Overbreadth analysis — like the question whether a statute
is narrowly tailored to serve a compelling governmental
interest — examines whether a statute encroaches upon
speech in a constitutionally overinclusive manner.
   We conclude that the statute is substantially overbroad
in that 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. See 

; see also, e.g., 

; Erznoznik
v. City of Jacksonville, 

, 212-14 (1975).

               1.   “Material Harmful to Minors”
   First, COPA’s definition of “material harmful to minors”
impermissibly places at risk a wide spectrum of speech that
is constitutionally protected. As we have discussed in our
strict scrutiny analysis, two of the three prongs of the
“harmful to minors” test — the “serious value” and
“prurient interest” prongs — contain requirements that
material be “taken as a whole.” See 47 U.S.C. § 231(e)(6)(C).
We have earlier explained that the First Amendment
requires the consideration of context. COPA’s text, however,
as we have interpreted it, see Part 

, calls for
evaluation of “any material” on the Web in isolation.
Such evaluation in isolation results in significant
overinclusiveness. Thus, an isolated item located

whose expression is constitutionally protected may well refrain from
exercising their right for fear of criminal sanctions provided by a statute
susceptible of application to protected expression.” Los Angeles Police
Dept. v. United Reporting Pub. Corp., 

, 38 (1999) (quoting
Gooding v. Wilson, 

, 520-521 (1972)). The District Court
held that the plaintiffs had standing. See Reno II, 

at 479.
We agree. See Reno 

.
                                 48


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).
   An examination of the claims of certain amici curiae
that COPA threatens their speech illustrates this problem.
For     example,      amicus     California   Museum       of
Photography/University       of  California   at  Riverside,
maintains a Web site that, among other things, displays
artwork from the museum’s collection. The Web site
contains a page that introduces the “photographers” section
of   the    Web     site.   See    California  Museum      of
Photography/University       of  California   at  Riverside,
UCR/CMP Photographers, at http://www.cmp.ucr.edu/
photos/photographers.html (last visited Feb. 6, 2003).34 This
Web page contains several photographs, each which serves
as a link to that museum’s on-line exhibit on a particular
photographer. One of these photographs on the
introductory page, by Lucien Clergue, links to the
museum’s exhibit of his work. This photograph is of a
naked woman whose “post-pubescent female breast,” 47
U.S.C. § 231(e)(6)(B), is exposed.
  Viewing this photograph “as a whole,” but without
reference to the surrounding context, as per COPA’s
definition of “material,” the photograph arguably meets the
definition of “harmful to minors.” Yet, this same
photograph, when treated in context as a component of the
entire Web page, cannot be said to be “harmful to minors.”
In the context of the Web page, which displays several art
exhibits, none of which are even arguably “harmful to
minors,” the Clergue photograph and its surroundings
would have “serious [artistic] value.” Of course, it would
also be protected speech as to adults.35

34. The Web site page can be reached by accessing the museum’s main
Web page at http://www.cmp.ucr.edu and then by clicking on a link
marked “photographers.”
35. Another such example is noted in the American Society of
Journalists’ amicus brief. See Br. of Amici Curiae American Society of
                                  49


  As another example, amicus Safer Sex Institute publishes
a Web site that contains sexual health and educational
materials. On one page of this Web site is a textual
description of how to use a condom with accompanying
graphic drawings. See Safer Sex Institute, safersex | a
journal    of   safer    sex,   http://safersex.org/condoms/
how.to.use/ (last visited Feb. 6, 2003). The page lists six
steps for properly using a condom. Next to this text are four
drawings that detail how to place a condom on the penis
and how to remove it after sex. Three of these drawings
each “exhibit[ ] . . . the genitals.” 47 U.S.C. § 231(e)(6)(B).
An evaluation of any of these three drawings alone, all of
which depict an erect penis “as a whole,” might lead to the
conclusion that they fit the “harmful to minors” standard.
Yet, these same drawings, viewed in the larger context of
the Web page, which provides instruction on the proper use
of a condom, is protected speech as to adults.36 We also
note that the same Web page provides links to other
information within the same Web site of potential
importance to adults (and possibly certain minors)
regarding safe sex.
  As these examples illustrate — and they are but a few of
the very many produced by the plaintiffs and the amici —
the burden that COPA would impose on harmless material

Journalists and Authors et al. at 23 n.19. The American Society points
to the work of photographer Paul Outerbridge as displayed on the J.
Paul Getty Museum Web site. The Web site includes a Web page
featuring a discussion of Outerbridge and containing three small
photographs, one of which is entitled “Woman with Meat Packer’s
Gloves.” See J. Paul Getty Museum, Paul Outerbridge (Getty Museum),
http://www.getty.edu/art/collections/bio/a1971-1.html (last visited Feb.
6, 2003). The museum describes this photograph as a “disturbing image
of a [naked] woman piercing her own breast and abdomen with the
sharp tips of meat packer’s gloves.”). This photograph in isolation
arguably meets COPA’s “harmful to minors” definition. When viewed in
the context of the Web page discussing the artist and displaying his
other art work, however, this image, as a component of the Web page in
its entirety, does not meet the “harmful to minors” standard.
36. Indeed, though we do not reach this issue, we note that this speech
may not even be obscene as to minors, at least as to older minors,
because it arguably has “serious value” for them.
                                     50


accompanying such single images causes COPA to be
substantially overinclusive.

                              2.   “Minor”
   As we have earlier explained, the term “minor” appears in
all three prongs of the statute’s modified-for-minors Miller
test. COPA’s definition of a “minor” as any person under the
age of seventeen serves to place at risk too wide a range of
speech that is protected for adults. The type of material
that might be considered harmful to a younger minor is
vastly different — and encompasses a much greater
universe of speech — than material that is harmful to a
minor just shy of seventeen years old.
  Thus, for example, sex education materials may have
“serious value” for, and not be “patently offensive” as to,
sixteen-year-olds. The same material, however, might well
be considered “patently offensive” as to, and without
“serious value” for, children aged, say, ten to thirteen, and
thus meet COPA’s standard for material harmful to minors.
  Because COPA’s definition of “minor” therefore 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 — the definition renders COPA significantly
overinclusive.37

37. We also consider the use of the term “minor,” as incorporated in
COPA’s definition of “material that is harmful to minors,” to be
impermissibly vague. A statute is void for vagueness if it “forbids . . . the
doing of an act in terms so vague that [persons] of common intelligence
must necessarily guess at its meaning and differ as to its application.”
Connally v. General Constr. Co., 

, 391 (1926). “[S]tandards
of permissible statutory vagueness are strict in the area of free
expression. . . . The objectionable quality of vagueness and overbreadth
does not depend upon absence of fair notice to a criminally accused or
upon unchanneled delegation of legislative powers, but upon the danger
of tolerating, in the area of First Amendment freedoms, the existence of
a penal statute susceptible of sweeping and improper application.”

. See also Reno 

(because
the CDA was “a content-based regulation of speech,” its “vagueness . . .
raise[d] special First Amendment concerns because of its obvious chilling
effect on free speech”).
                                   51


                  3.     “Commercial Purposes”
   COPA’s purported limitation of liability to persons making
communications “for commercial purposes” does not
narrow the sweep of COPA sufficiently. Instead, the
definition subjects too wide a range of Web publishers to
potential liability. As we have explained, under the plain
language of COPA, a Web publisher will be subjected to
liability due to the fact that even a small part of his or her
Web site has material “harmful to minors.” Furthermore,
because the statute does not require that a Web publisher
seek profit as a sole or primary objective, COPA can reach
otherwise non-commercial Web sites that obtain revenue
through advertising. We have explored this subject in
greater detail in the strict scrutiny section of this opinion.
The conclusion we reach there is every bit as relevant here.

                    4.    Affirmative Defenses
   The affirmative defenses do not save the statute from
sweeping too broadly. First, the affirmative defenses, if
employed by Web publishers, will result in a chilling effect
upon adults who seek to view, and have a right to access,
constitutionally protected speech. Compliance with COPA’s
affirmative defenses requires that Web publishers place
obstacles in the way of adults seeking to obtain material
that may be considered harmful to minors under the

   COPA’s definition of “minor” includes all children under the age of
seventeen, as we have noted. Because the statute’s definition of minor is
all-inclusive, and provides no age “floor,” a Web publisher will be forced
to guess at the bottom end of the range of ages to which the statute
applies. The fearful Web publisher therefore will be forced to assume,
and conform his conduct to, the youngest minor to whom the statute
conceivably could apply. We cannot say whether such a minor would be
five years of age, three years, or even two months. Because we do not
think a Web publisher will be able to make such a determination either,
we do not think that they have fair notice of what conduct would subject
them to criminal sanctions under COPA. As a result of this vagueness,
Web publishers will be deterred from engaging in a wide range of
constitutionally protected speech. The chilling effect caused by this
vagueness offends the Constitution.
                             52


statute. As the District Court found, these barriers, which
would require adults to identify themselves as a
precondition to accessing disfavored speech, are likely to
deter many adults from accessing that speech.
   Second, the affirmative defenses impose a burden on Web
publishers, and as such, do not alleviate the chilling effect
that COPA has on their speech. Web publishers will be
forced to take into account the chilling effect that COPA’s
affirmative   defenses    have    on    adult   Web    users.
Consequently, COPA will cause Web publishers to recoil
from engaging in such expression at all, rather than
availing themselves of the affirmative defenses. Additionally,
the financial costs of implementing the barriers necessary
for compliance with COPA may further deter some Web
publishers from posting protected speech on their Web
sites.
  Moreover, because the affirmative defenses are not
included as elements of the statute, Web publishers are
saddled with the substantial burden of proving that their
“conduct falls within the affirmative defense.” Free Speech

.
  Thus, the affirmative defenses do not cure nor diminish
the broad sweep of COPA sufficiently.

               5.   “Community Standards”
  As the Supreme Court has now explained, community
standards by itself did not suffice to render COPA
substantially overbroad. Justice Kennedy’s concurring
opinion, however, explained that community standards, in
conjunction with other provisions of the statute, might
render the statute substantially overbroad. See 

(Kennedy, J., concurring) (“We cannot
know whether variation in community standards renders
the Act substantially overbroad without first assessing the
extent of the speech covered and the variations in
community standards with respect to that speech.”).
  As we have just discussed earlier, the expansive
definitions of “material harmful to minors” and “for
commercial purposes,” as well as the burdensome
                             53


affirmative defenses, likely render the statute substantially
overbroad. COPA’s application of “community standards”
exacerbates these constitutional problems in that it further
widens the spectrum of protected speech that COPA affects.
As we said in our original decision, “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.”
Reno 

; see also 

(Kennedy, J., concurring) (“if an eavesdropper in a
more traditional, rural community chooses to listen in,
there is nothing the publisher can do. As a practical matter,
COPA makes the eavesdropper the arbiter of propriety on
the Web.”).
  The “community standards” requirement, when viewed in
conjunction with the other provisions of the statute — the
“material harmful to minors” provision and the “commercial
purposes” provisions, as well as the affirmative defenses —
adds to the already wide range of speech swept in by COPA.
Because the community standards inquiry further broadens
the scope of speech covered by the statute, the limitations
that COPA purports to place on its own reach are that
much more ineffective.

      6.   Unavailability of Narrowing Construction
   Before concluding that a statute is overbroad, we are
required to assess whether it is subject to “a narrowing
construction that would make it constitutional.” Virginia v.
American Booksellers’ Ass’n, 

, 397 (1988). We
may impose such a narrowing construction, however, “only
if it is readily susceptible to such a construction,” Reno 

, because courts “will not rewrite a . . . law
to conform it to constitutional requirements.” American

. As the Supreme Court once
noted, “It would certainly be dangerous if the legislature
could set a net large enough to catch all possible offenders,
and leave it to the courts to step inside and say who could
be rightfully detained, and who should be set at large. This
would, to some extent, substitute the judicial for the
legislative department of the government.” United States v.
Reese, 

, 221 (1875).
                               54


  We originally declined to redraw COPA when we held that
the “contemporary community standards” rendered the
statute overbroad; we certainly decline to perform even
more radical surgery here. In order to satisfy the
constitutional prerequisites consistent with our holding
today, we would be required, inter alia, to redraw the text
of “commercial purposes” and redraw the meaning of
“minors” and what is “harmful to minors,” including the
reach of “contemporary community standards.” We would
also be required to redraw a new set of affirmative defenses.
Any attempt to resuscitate this statute would constitute a
“serious invasion of the legislative domain.” United States v.
National Treasury Employees Union, 

, 479 n.26
(1995).
                           *    *     *
  Accordingly, we hold that the plaintiffs will more probably
prove at trial that COPA is substantially overbroad, and
therefore, we will affirm the District Court on this
independent ground as well.

                               III.
  This appeal concerns the issuance of a preliminary
injunction pending the resolution of the merits of the case.
Because the ACLU will likely succeed on the merits in
establishing that COPA is unconstitutional because it fails
strict scrutiny and is overbroad, we will affirm the issuance
of a preliminary injunction.
                                 55


                            APPENDIX A
               CHILD ONLINE PROTECTION ACT
                      47 U.S.C. § 231
Restriction of access by minors to materials commercially
distributed by means of world wide web that are harmful to
minors
(a)   Requirement to restrict access
      (1)   Prohibited conduct
        Whoever knowingly and with knowledge of the
      character of the material, in interstate or foreign
      commerce by means of the World Wide Web, makes
      any communication for commercial purposes that is
      available to any minor and that includes any material
      that is harmful to minors shall be fined not more than
      $50,000, imprisoned not more than 6 months, or both.
      (2)   Intentional violations
        In addition to the penalties under paragraph (1),
      whoever intentionally violates such paragraph shall be
      subject to a fine of not more than $50,000 for each
      violation. For purposes of this paragraph, each day of
      violation shall constitute a separate violation.
      (3)   Civil penalty
        In addition to the penalties under paragraphs (1) and
      (2), whoever violates paragraph (1) shall be subject to
      a civil penalty of not more than $50,000 for each
      violation. For purposes of this paragraph, each day of
      violation shall constitute a separate violation.
(b) Inapplicability of carriers and other service providers
  For purposes of subsection (a), a person shall not be
considered to make any communication for commercial
purposes to the extent that such person is—
        (1) a telecommunications carrier engaged in the
      provision of a telecommunications service;
        (2) a person engaged in the business of providing an
      Internet access service;
                               56


        (3) a person engaged in the business of providing an
      Internet information location tool; or
        (4) similarly engaged in the transmission, storage,
      retrieval, hosting, formatting, or translation (or any
      combination thereof) of a communication made by
      another person, without selection or alteration of the
      content of the communication, except that such
      person’s deletion of a particular communication or
      material made by another person in a manner
      consistent with subsection (c) or section 230 shall not
      constitute such selection or alteration of the content of
      the communication.
(c)   Affirmative defense
      (1)   Defense
        It is an affirmative defense to prosecution under this
      section that the defendant, in good faith, has restricted
      access by minors to material that is harmful to minors
      —
          (A) by requiring use of a credit card, debit
        account, adult access code, or adult personal
        identification number;
          (B) by accepting a digital certificate that verifies
        age; or
          (C) by any other reasonable measures that are
        feasible under available technology.
      (2)   Protection for use of defenses
        No cause of action may be brought in any court or
      administrative agency against any person on account
      of any activity that is not in violation of any law
      punishable by criminal or civil penalty, and that the
      person has taken in good faith to implement a defense
      authorized under this subsection or otherwise to
      restrict or prevent the transmission of, or access to, a
      communication specified in this section.
(d)   Privacy protection requirements
      (1)   Disclosure of information limited
                                57


        A person making a communication described in
      subsection (a)—
          (A) shall not disclose any information collected for
        the purposes of restricting access to such
        communications to individuals 17 years of age or
        older without the prior written or electronic consent
        of—
              (i) the individual concerned, if the individual is
            an adult; or
              (ii) the individual’s parent or guardian, if the
            individual is under 17 years of age; and
        (B) shall take such actions as are necessary to
      prevent unauthorized access to such information by
      a person other than the person making such
      communication    and    the   recipient  of   such
      communication.
      (2)   Exceptions
        A person making a communication described in
      subsection (a) may disclose such information if the
      disclosure is—
          (A) necessary to make the communication or
        conduct a legitimate business activity related to
        making the communication; or
          (B) made pursuant to a court order authorizing
        such disclosure.
(e)   Definitions
  For purposes of this subsection, the following definitions
shall apply:
      (1)   By means of the world wide web
         The term “by means of the World Wide Web” means
      by 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.
      (2)   Commercial purposes; engaged in the business
                          58


  (A)   Commercial purposes
    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.
  (B)   Engaged in the business
     The term “engaged in the business” means that the
  person who makes a communication, or offers to
  make a communication, by means of the World Wide
  Web, that includes any material that is harmful to
  minors, devotes time, attention, or labor to such
  activities, as a regular course of such person’s trade
  or business, with the objective of earning a profit as
  a result of such activities (although it is not
  necessary that the person make a profit or that the
  making or offering to make such communications be
  the person’s sole or principal business or source of
  income). A person may be considered to be engaged
  in the business of making, by means of the World
  Wide Web, communications for commercial purposes
  that include material that is harmful to minors, only
  if the person knowingly causes the material that is
  harmful to minors to be posted on the World Wide
  Web or knowingly solicits such material to be posted
  on the World Wide Web.
(3)   Internet
  The term “Internet” means the combination of
computer facilities and electromagnetic transmission
media, and related equipment and software,
comprising the interconnected world-wide network of
computer networks that employ the Transmission
Control Protocol/Internet Protocol or any successor
protocol to transmit information.
(4)   Internet access service
  The term “Internet access service” means a service
that enables users to access content, information,
electronic mail, or other services offered over the
Internet, and may also include access to proprietary
content, information, and other services as part of a
                               59


    package of services offered to consumers. Such term
    does not include telecommunications services.
    (5)   Internet information location tool
       The term “Internet information location tool” means
    a service that refers or links users to an online location
    on the World Wide Web. Such term includes
    directories, indices, references, pointers, and hypertext
    links.
    (6)   Material that is harmful to minors
      The term “material that is harmful to minors” means
    any communication, picture, image, graphic image file,
    article, recording, writing, or other matter of any kind
    that is obscene or that—
        (A) the average person, applying contemporary
      community standards, would find, taking the
      material as a whole and with respect to minors, is
      designed to appeal to, or is designed to pander to,
      the prurient interest;
        (B) depicts, describes, or represents, in a manner
      patently offensive with respect to minors, an actual
      or simulated sexual act or sexual contact, an actual
      or simulated normal or perverted sexual act, or a
      lewd exhibition of the genitals or post-pubescent
      female breast; and
        (C) taken as a whole, lacks serious literary,
      artistic, political, or scientific value for minors.
    (7)   Minor
      The term “minor” means any person under 17 years
    of age.

A True Copy:
        Teste:

                    Clerk of the United States Court of Appeals
                                for the Third Circuit