American Civil Liberties Union v. Reno
| Citation | 217 F.3d 162 |
| Decision Date | 22 June 2000 |
| Docket Number | No. 99-1324,99-1324 |
| Parties | (3rd Cir. 2000) 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. JANET RENO, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES APPELLANT |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 98-cv-05591) District Judge: Honorable Lowell A. Reed, Jr. [Copyrighted Material Omitted] David W. Ogden Acting Assistant Attorney General, Michael R. Stiles United States Attorney, Barbara L. Herwig, Jacob M. Lewis (Argued), Charles Scarborough Attorneys, Appellate Staff Civil Division, Washington, D.C., Attorneys for Appellant.
Ann E. Beeson (Argued), Christopher A. Hansen, John C. Salyer, American Civil Liberties Union, New York, New York, Attorneys for Appellee Americna Civil Liberties Union.
Ann E. Beeson (Argued), Christopher A. Hansen, John C. Salyer, Stefan Presser, American Civil Liberties Union, Philadelphia, 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
Catherine E. Palmer, Christopher R. Harris, Michele M. Pyle, Douglas A. Griffin, Katherine M. Bolger Latham & Watkins, New York, New York, of counsel to American Civil Liberties Union
David L. Sobel, Electronic Privacy Information Center, Washington, D.C., Attorney for Appellee Electronic Privacy Information Center
Shari Steele, Electronic Frontier Foundation, Bryans Road, Maryland, Attorney for Appellee Electronic Frontier Foundation
David Affinito Dell'Italia, Affinito, Jerejian & Santola Orange, New Jersey,
Paul J. McGeady, Robin S. Whitehead, Of counsel, New York, New York, Attorneys for Amici Curiae Morality in Media, Inc., American Catholic Lawyers Association
Bruce A. Taylor, J. Robert Flores, Chadwicke L. Groover, National Law Center for Children and Families, Fairfax, Virginia,
James J. West, Harrisburg, Pennsylvania, Attorneys for Amici Curiae-Appellant John S. McCain, Senator; Dan Coats, Senator; Thomas J. Bliley, Representative; Michael G. Oxley, Representative; James C. Greenwood, Representative
Janet M. LaRue, Family Research Council, Washington, D.C., Attorney for Amicus Curiae- Appellants Family Research Council; Enough is Enough; The Jewish Policy Center
R. Bruce Rich, Elizabeth S. Weiswasser, Weil, Gotshal & Manges, New York, New York, Attorneys for Amicus Curiae-Appellees The American Society of Newspaper Editors; Bibliobytes, Inc.; The Center for Democracy and Technology; The Comic Book Legal Defense Fund; The Commercial Internet Exchange Association and Psinet, Inc.; Freedom Read Foundation; 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.
Stephen A. Bokat, National Chamber Litigation Center, Washington, D.C.,
Bruce J. Ennis, Jenner & Block, Washington, D.C., Attorney Amicus Curiae-Appellee The Chamber of Commerce of the United States of America.
Bruce J. Ennis, Jenner & Block, Washington, D.C., Attorney for Amicus Curiae-Appellee Internet Education Foundation.
Before: Nygaard, McKEE Circuit Judges and Garth, Senior Circuit Judge
This appeal "presents a conflict between one of society's most cherished rights -- freedom of expression-- and one of the government's most profound obligations -- the protection of minors." American Booksellers v. Webb, 919 F.2d 1493, 1495 (11th Cir. 1990). The government challenges the District Court's issuance of a preliminary injunction which prevents the enforcement of the Child Online Protection Act, Pub. L. No. 105-277, 112 Stat. 2681 (1998) (codified at 47 U.S.C. S 231) ("COPA"), enacted in October of 1998. At issue is COPA's constitutionality, a statute designed to protect minors from "harmful material" measured by "contemporary community standards" knowingly posted on the World Wide Web ("Web") for commercial purposes.1
We will affirm the District Court's grant of a preliminary injunction because we are confident that the ACLU's attack on COPA's constitutionality is likely to succeed on the merits. Because material posted on the Web is accessible by all Internet users worldwide, and because current technology does not permit a Web publisher to restrict access to its site based on the geographic locale of each particular Internet user, COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standards in order to avoid criminal liability. Thus, because the standard by which COPA gauges whether material is "harmful to minors" is based on identifying "contemporary community standards" the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech.
In affirming the District Court, we are forced to recognize that, at present, due to technological limitations, there may be no other means by which harmful material on the Web may be constitutionally restricted, although, in light of rapidly developing technological advances, what may now be impossible to regulate constitutionally may, in the not-too-distant future, become feasible.
COPA was enacted into law on October 21, 1998. Commercial Web publishers subject to the statute that distribute material that is harmful to minors are required under COPA to ensure that minors do not access the harmful material on their Web site. COPA is Congress's second attempt to regulate the dissemination to minors of indecent material on the Web/Internet. The Supreme Court had earlier, on First Amendment grounds, struck down Congress's first endeavor, the Communications Decency Act, ("CDA") which it passed as part of the Telecommunications Act of 1996.2 See ACLU v. Reno, 521 U.S. 844 (1997) ("Reno II"). To best understand the current challenge to COPA, it is necessary for us to briefly examine the CDA.
The CDA prohibited Internet users from using the Internet to communicate material that, under contemporary community standards, would be deemed patently offensive to minors under the age of eighteen. See Reno II , 521 U.S. at 859-60.3 In so restricting Internet users, the CDA provided two affirmative defenses to prosecution; (1) the use of a credit card or other age verification system, and (2) any good faith effort to restrict access by minors. See id. at 860. In holding that the CDA violated the First Amendment, the Supreme Court explained that without defining key terms the statute was unconstitutionally vague. Moreover, the Court noted that the breadth of the CDA was "wholly unprecedented" in that, for example, it was "not limited to commercial speech or commercial entities . . . [but rather] [i]ts open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers." Id at 877.
Further, the Court explained that, as applied to the Internet, a community standards criterion would effectively mean that because all Internet communication is made available to a worldwide audience, the content of the conveyed message will be judged by the standards of the community most likely to be offended by the content. See id. at 877-78. Finally, with respect to the affirmative defenses authorized by the CDA, the Court concluded that such defenses would not be economically feasible for most noncommercial Web publishers, and that even with respect to commercial publishers, the technology had yet to be proven effective in shielding minors from harmful material. See id. at 881. As a result, the Court held that the CDA was not tailored so narrowly as to achieve the government's compelling interest in protecting minors, and that it lacked the precision that the First Amendment requires when a statute regulates the content of speech. See id . at 874. See also United States v. Playboy Entertainment Group, Inc., 120 S.Ct. 1878, 146 L.Ed.2d 865 .
COPA, the present statute, attempts to "address[ ] the specific concerns raised by the Supreme Court" in invalidating the CDA. H.R. REP. NO . 105-775 at 12 (1998); See S.R. REP. NO. 105-225, at 2 (1998). COPA prohibits an individual or entity from:
knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, mak[ing] 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. S 231(a)(1) (emphasis added). As part of its attempt to cure the constitutional defects found in the CDA, Congress sought to define most of COPA's key terms. COPA attempts, for example, to restrict its scope to material on the Web rather than on the Internet as a whole;4 to target only those Web communications made for "commercial purposes";5 and to limit its...
To continue reading
Request your trial
-
Child Evangelism of Nj v. Stafford Tp. School
...in even greater harm to the nonmoving party; and (4) granting such relief will be in the public interest. See, e.g., ACLU v. Reno, 217 F.3d 162, 172 (3d Cir.2000); ACLU of N.J. v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1477 n. 2 (3d Cir.1996) (en banc) (citations and quotation o......
-
Southeastern Penn. Transp. v. Penn. Pub. Util.
...will result in even greater harm to PUC; and (4) whether granting the requested relief behooves the public interest. ACLU v. Reno, 217 F.3d 162, 172 (3d Cir.2000); Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999). The Court considers each factor in A. LIKELIHOOD OF SUCC......
-
American Amusement Mach. Ass'n v. Kendrick
...to the cases discussed above, see New York v. Ferber, 458 U.S. 747, 756-57, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), and ACLU v. Reno, 217 F.3d 162, 173 (3d Cir.2000). The Eleventh Circuit has described the protection of children as "one of government's most profound obligations." American B......
-
S. Camden Citizens v. NJ Dept. Envtl. Prot.
...to be limited to determining if plaintiffs have established "a reasonable probability of succeeding on the merits...." ACLU v. Reno, 217 F.3d 162, 173 (3d Cir. 2000) (emphasis added). We need look no further than our recent decision in Powell v. Ridge, (3d Cir.) cert denied, 528 U.S. 1046 (......
-
Erroneous Injunctions
...498-99 (E.D. Pa. 1999) (containing identical language barring prosecutions for conduct occurring while the order is in effect), aff'd, 217 F.3d 162 (3d Cir. 2000), vacated sub nom. Ashcroft v. ACLU, 535 U.S. 564 (2002); Int'l Paper Co. v. Town of Jay, 672 F. Supp. 29, 35 (D. Me. 1987) (ente......
-
The Children's Internet Protection Act: a Denial of a Student's Opportunity to Learn in a Technology-rich Environment
...Pub. Library v. United States, No. 01-CV-1322 (E.D. Pa. filed Mar. 20, 2001). [14]. See Reno II, 521 U.S. at 885; see also ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000), cert. granted sub nom. Ashcroft v. ACLU, 532 U.S. 1037 (2001) (Reno IV); Am. Library Ass'n v. United States, 201 F. Supp. 2d ......
-
The Internet and the Constitution: a Selective Retrospective
...547 U.S. 1015 (2006). 70. Pub. L. No. 105-277, 112 Stat. 2681 (1998) (codified at 47 U.S.C. § 231). 71. Am. Civil Liberties Union v. Reno, 217 F.3d 162, 179-81 (3d Cir. 2000). 72. Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 585-86 (2002). 73. Id. at 582-84. 74. Am. Civil Liberties ......
-
Computer crimes.
...2d 473,498-99 (E.D. Pa. 1999) (holding that COPA was unlikely to survive strict scrutiny). (279.) American Civil Liberties Union v. Reno, 217 F.3d 162, 166 (3d Cir. (280.) Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002). (281.) American Civil Liberties Union v. Ashcroft, 322......