American Civil Liberties Union v. Ashcroft

• Decision Date: 06 March 2003
• Docket Number: No. 99-1324.,99-1324.
• Citation: 322 F.3d 240
• Parties: 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
• Court: U.S. Court of Appeals — Third Circuit

322 F.3d 240

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

No. 99-1324.

United States Court of Appeals, Third Circuit.

Originally Argued November 4, 1999.

Argued on Remand October 29, 2002.

Filed March 6, 2003.

COPYRIGHT MATERIAL OMITTED

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, Department of Justice, Washington, D.C., for Appellant.

Douglas A. Griffin, Catherine E. Palmer, Michele M. Pyle, Katherine M. Bolger, Christopher R. Harris, Latham & Watkins, New York, NY, Ann E. Beeson (Argued), Christopher A. Hansen, American Civil Liberties Union Foundation, New York, NY, John C. Salyer, American Civil Liberties Union of New Jersey Foundation, Newark, NJ, for Appellee American Civil Liberties Union.

John C. Salyer, Christopher A. Hansen, Ann E. Beeson, Stefan Presser, American Civil Liberties Union of Pennsylvania, Philadelphia, PA, 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, Washington, D.C., for Appellee Electronic Privacy Information Center.

Lee Tien, Electronic Frontier Foundation, San Francisco, CA, for Appellee Electronic Frontier Foundation.

Paul J. McGeady, Mary McNeill, New York, NY, David P. Affinito, Counsel of Record, Morality in Media, Inc., American Catholic Lawyers Association, Dell'Italia, Affinito, Jerejian & Santola, Orange, NJ, 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, Fairfax, VA, James J. West, Local Counsel, Harrisburg, PA, 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., for Amicus Curiae-Appellants Family Research Council; Enough is Enough; The Jewish Policy Center.

Paula Bruening, John B. Morris, Jr., Alan B. Davidson, Washington, D.C., R. Bruce Rich, Jonathan Bloom, Counsel for the Association of American Publishers, Inc., Weil, Gotshal & Manges LLP, New York, NY, Richard M. Schmidt, Jr., Kevin M. Goldberg, Counsel for the American Society of Newspaper Editors, Cohn and Marks LLP, Washington, D.C., Burt Joseph, Barsy Joseph and Lichtenstein, Counsel for the Comic Book Legal Defense Fund, Chicago Heights, IL, Edward J. Black, Jason Mahler, Computer and Communications Industry Association, Washington, D.C., Elliot M. Mincberg, Lawrence S. Ottinger, People for the American Way Foundation, Washington D.C., Lloyd J. Jassin, Law Offices of Lloyd J. Jassin, Counsel for the Publishers Marketing Association, New York, NY, Bruce W. Sanford, Robert D. Lystad, Bruce D. Brown, Counsel for the Society of Professional Journalists, Baker & Hostetler LLP, Washington, D.C., 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.

Stephen A. Bokat, National Chambers Litigation Center, Washington, D.C., Bruce J. Ennis, Jenner & Block, Washington, D.C., Amicus Curiae-Appellee The Chamber of Commerce of the United States of America.

Bruce J. Ennis, Jenner & Block, Washington, D.C., 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, Philadelphia, PA, for Amicus Curiae-Appellees American Society of Journalists and Authors, Authors Guild, Bay Area Lawyers for Individual Freedom, California Museum of Photography/University of California at Riverside, Lambda Legal Defense and Education Fund, Peter Ludlow, Chuck More, Don Ritter, Safer Sex Institute, and the Sexuality Information and Education Council of the United States.

BEFORE: NYGAARD and McKEE, Circuit Judges, and GARTH, Senior Circuit Judge.

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, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (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." Id. at 1713 (emphasis in original). Pursuant to the Supreme Court's instructions in Ashcroft, we have revisited the question of COPA's constitutionality in light of the concerns expressed by the Supreme Court.

Our present review of the District Court's decision and the analysis on which that decision was based does not change the result that we originally had reached, albeit on a ground neither decided nor discussed by the District Court. See ACLU v. Reno, 217 F.3d 162 (3d Cir.2000) ("Reno III"), vacated and remanded, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (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, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (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.

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 I, 521 U.S. at 859, 117 S.Ct. 2329. Like COPA, the CDA provided two affirmative defenses to prosecution: (1) the use of a credit card or other age verification system, and (2) any good faith effort to restrict access by minors. See id. at 860, 117 S.Ct. 2329.

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." Id. at 877, 117 S.Ct. 2329.³

In holding that "the breadth of the CDA's coverage is wholly unprecedented," the Court continued by noting that "the `community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." Id. at 877-78, 117 S.Ct. 2329.

The Court also discussed the constitutional propriety of the credit card/age verification defenses authorized by the CDA. Utilizing the District Court's findings, the Court held that such defenses would not be feasible for most noncommercial Web publishers, and that even with respect to commercial publishers, the technology had yet to be proven effective in shielding minors from harmful material. See id. at 881, 117 S.Ct. 2329. As a result, the Court determined that the CDA was not narrowly tailored to the Government's purported interest, and "lacks the precision that the First Amendment requires when a statute regulates the content of speech." Id. at 874, 117 S.Ct. 2329.

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...