American Civil Liberties Union v. Mukasey

• Decision Date: 22 July 2008
• Docket Number: No. 07-2539.,07-2539.
• Parties: AMERICAN CIVIL LIBERTIES UNION; Androgyny Books, Inc., d/b/a a Different Light Bookstores; American Booksellers Foundation for Free Expression; Addazi, Inc., d/b/a Condomania; Electronic Frontier Foundation; Electronic Privacy Information Center; Free Speech Media; Philadelphia Gay News; Powell's Bookstores; Salon Media Group, Inc.; Planetout, Inc.; Heather Corinna Rearick; Nerve.Com, Inc.; Aaron Peckham, d/b/a Urban Dictionary; Public Communicators, Inc.; Dan Savage; Sexual Health Network v. *Michael B. MUKASEY, in his official capacity as Attorney General of the United States. Michael B. Mukasey, Appellant. *(Substituted as per FRAP 43(b)).
• Court: U.S. Court of Appeals — Third Circuit

534 F.3d 181

AMERICAN CIVIL LIBERTIES UNION; Androgyny Books, Inc., d/b/a a Different Light Bookstores; American Booksellers Foundation for Free Expression; Addazi, Inc., d/b/a Condomania; Electronic Frontier Foundation; Electronic Privacy Information Center; Free Speech Media; Philadelphia Gay News; Powell's Bookstores; Salon Media Group, Inc.; Planetout, Inc.; Heather Corinna Rearick; Nerve.Com, Inc.; Aaron Peckham, d/b/a Urban Dictionary; Public Communicators, Inc.; Dan Savage; Sexual Health Network v. *Michael B. MUKASEY, in his official capacity as Attorney General of the United States.

Michael B. Mukasey, Appellant. *(Substituted as per FRAP 43(b)).

No. 07-2539.

United States Court of Appeals, Third Circuit.

Argued June 10, 2008.

Filed: July 22, 2008.

Catherine N. Crump, Aden J. Fine, Christopher A. Hansen (argued), Benjamin E. Wizner, American Civil Liberties Union, Christopher R. Harris, Jeroen van Kwawegen, Katherine E. Marshall, Latham & Watkins, New York, NY, for Appellees.

Jeffrey S. Bucholtz, Acting Assistant Attorney General, Patrick L. Meehan, United States Attorney, Scott R. McIntosh, United States Department of Justice, Civil Division, Charles W. Scarborough (argued), United States Department of Justice, Appellate Section, Washington, DC, for Appellant.

David P. Affinito, Dell'Italia, Affinito, & Santola, Orange, NJ, for Amicus Curiae Morality in Media, Inc.

Steven W. Fitschen, The National Legal Foundation, Virginia Beach, VA, for Amicus Curiae National Legal Foundation.

Robert Corn-Revere, Davis, Wright & Tremine, Washington, D.C., for Amici Curiae Article 19, Reporters Without Borders, and World Press Freedom.

John B. Morris, Jr., Center for Democracy & Technology, Washington, D.C., for certain amici curiae.

Before: AMBRO, CHAGARES, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on an appeal from an order of the District Court entered March 22, 2007, finding that the Child Online Protection Act ("COPA"), 47 U.S.C. § 231, facially violates the First and Fifth Amendments of the Constitution and permanently enjoining the Attorney General from enforcing COPA. The Government challenges the District Court's conclusions that: (1) COPA is not narrowly tailored to advance the Government's compelling interest in protecting children from harmful material on the World Wide Web ("Web"); (2) there are less restrictive, equally effective alternatives to COPA; and (3) COPA is impermissibly overbroad and vague. We will affirm.

II. FACTS AND PROCEDURAL HISTORY

It is useful at the outset to set forth a short history of the background of COPA and an explanation of the relationship between the Web and the Internet. Congress enacted COPA to protect minors from exposure to sexually explicit material on the Web. The Web is just one portion of the Internet, which "is an interactive medium based on a decentralized network of computers." American Civil Liberties Union v. Gonzales, 478 F.Supp.2d 775, 781 (E.D.Pa.2007) ("Gonzales"). "The Internet may also be used to engage in other activities such as sending and receiving emails, trading files, exchanging instant messages, chatting online, streaming audio and video, and making voice calls." Id. The District Court described how the Web functions:

On the Web, a client program called a Web browser retrieves information from the Internet, such as Web pages and other computer files using their network addresses and displays them, typically on a computer monitor.... Web pages, which can contain, inter alia, text, still and moving picture files, sound files, and computer scripts, are often arranged in collections of related material called Web sites, which consist of one or more Web pages.... It is estimated that there are between 25 and 64 billion Web pages on the surface portion of the Web (`Surface Web')—that is, the portion of the Web that is capable of being indexed by search engines. These Web pages may be displayed on a monitor screen and, thus, the content may be seen by anyone operating a computer or other Internet capable device which is properly connected to the Internet.

Id. at 781-82 (citations omitted). The District Court indicated that "[a] little more than 1 percent of all Web pages on the Surface Web (amounting to approximately 275 million to 700 million Web pages) are sexually explicit." Id. at 788.

COPA provides for civil and criminal penalties—including up to six months imprisonment—for anyone who knowingly posts "material that is harmful to minors" on the Web "for commercial purposes." 47 U.S.C. § 231(a)(1). "Intentional" violations result in heavier fines. Id. at § 231(a)(2). "[M]aterial that is harmful to minors" includes any communication that is obscene or that:

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

Id. at § 231(e)(6). "The term `minor' means any person under 17 years of age." Id. at § 231(e)(7). A person makes a communication "for commercial purposes" only if the person when making the communication "is engaged in the business of making such communications." Id. at § 231(e)(2)(A). A person is "engaged in the business" when the person:

devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities .... [and] only if the person knowingly causes [or solicits] the material that is harmful to minors to be posted on the World Wide Web....

Id. at § 231(e)(2)(B). A Web publisher can assert an affirmative defense to prosecution under COPA if he or she:

has restricted access by minors to material that is harmful to minors—(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology.

Id. at § 231(c)(1).

Congress enacted COPA after the Supreme Court declared Congress's first attempt to protect minors from exposure to sexually explicit materials on the Web to be unconstitutional. See Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (holding that the Communications Decency Act violated the First Amendment). The day after COPA became law on October 21, 1998, plaintiffs, consisting of speakers, content providers, and users of the Web, filed this action in the District Court seeking an injunction barring COPA's enforcement. On February 1, 1999, the District Court preliminarily enjoined the Government from enforcing COPA pending a trial on the merits. American Civil Liberties Union v. Reno, 31 F.Supp.2d 473 (E.D.Pa. 1999). In its opinion the court pointed out, among many other things, that the plaintiffs suggested that filtering and blocking technology was an "example of a more efficacious and less restrictive means to shield minors from harmful materials" than COPA but that the final determination of whether this was so "must await trial on the merits." Id. at 497.

The Government appealed but we affirmed the District Court's order after concluding that the "community standards" language in section 231(e)(6)(A) by itself rendered COPA unconstitutionally overbroad. American Civil Liberties Union v. Reno, 217 F.3d 162, 173 (3d Cir.2000) ("ACLU I"). The Government then sought and obtained certiorari and the Supreme Court vacated our decision and remanded the case to us for further proceedings because the Court concluded that the "community standards" language did not, standing alone, make the statute unconstitutionally overbroad. Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 585, 122 S.Ct. 1700, 1713, 152 L.Ed.2d 771 (2002).

On the remand we ruled that, for a variety of reasons, COPA was not narrowly tailored to serve the Government's compelling interest in preventing minors from being exposed to harmful material on the Web, was not the least restrictive means available to effect that interest, and was substantially overbroad. American Civil Liberties Union v. Ashcroft, 322 F.3d 240, 251-71 (3d Cir.2003) ("ACLU II"). Consequently, we again affirmed the District Court's order granting the preliminary injunction. Id. at 271. The Government again sought and obtained certiorari but this time the Supreme Court affirmed our decision though it remanded the case to the District Court for a trial on the merits. The Court contemplated that the record would be updated on the remand to reflect the then current technological developments and to account for any changes in the legal landscape. The Court further directed that the District Court determine whether Internet content filters are more effective than enforcement of the COPA restrictions or whether other possible alternatives are less restrictive and more effective than COPA to effectuate Congress's intention. Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 670-73, 124 S.Ct. 2783, 2794-95, 159 L.Ed.2d 690 (2004).

After a bench trial, the District Court on March 22, 2007, issued extensive findings of fact, determined that plaintiffs have standing to maintain this action, and concluded that:

COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) COPA is not narrowly tailored to the compelling interest of Congress; (2) defendant has failed to meet his burden of...