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 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. Argued Thursday, November 4, 1999 BEFORE: NYGAARD, McKEE Circuit Judges and GARTH, Senior Circuit Judge

(Opinion filed June 22, 2000)

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, Room 9120

Department of Justice

601 D Street, N.W.

Washington, D.C. 20530-0001

Attorneys for Appellant

Douglas A. Griffin

Christopher R. Harris

Catherine E. Palmer

Michele M. Pyle

Katherine M. Bolger

Latham & Watkins

885 Third Avenue

Suite 100

New York, New York 10022-4802

Christopher A. Hansen

Ann E. Beeson (Argued)

John C. Salyer

American Civil Liberties Union

125 Broad Street

New York, New York 10004

Attorneys for Appellee

American Civil Liberties Union

Stefan Presser

Christopher A. Hansen

Ann E. Beeson (Argued)

John C. Salyer

Suite 701

American Civil Liberties Union

125 South Ninth Street

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

Shari Steele

Electronic Frontier Foundation

6999 Barry’s Hill Road

Bryans Road, Maryland 20616

Attorney for Appellee

Electronic Frontier Foundation

David Affinito

Dell’Italia, Affinito, Jerejian

& Santola

18 Tony Galento Plaza

Orange, New Jersey 07050

Paul J. McGeady

Robin S. Whitehead

Of counsel

475 Riverside Drive

New York, New York 10115

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

3819 Plaza Drive

Fairfax, Virginia 22030-2512

James J. West

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

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

R. Bruce Rich

Elizabeth S. Weiswasser

Weil, Gotshal & Manges

767 Fifth Avenue

New York, New York 10153

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

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

OPINION OF THE COURT

GARTH, 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

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1. The District Court exercised subject matter jurisdiction pursuant to the general federal question statute, 28 U.S.C.S 1331. This court exercises appellate jurisdiction pursuant to 28 U.S.C. S 1292(a)(1), which provides a court of appeals with jurisdiction over appeals from “[i]nterlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing, or dissolving injunctions . . . except where a direct review may be had in the Supreme Court.”

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.

I. BACKGROUND

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 1996.2See 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.

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2. For ease of reference the various applicable cases will be referred to as follows: ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), hereinafter “Reno I” (addressing CDA); ACLU v. Reno, 521 U.S. 844 (1997), hereinafter “Reno II” (striking down the CDA as unconstitutional); ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999), hereinafter “Reno III” (case currently on appeal addressing constitutionality of COPA).

A. 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 useof 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

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3. The Communications Decency Act, 47 U.S.C.S 223(d) provides that:

Whoever –

“(1) in interstate or foreign communications knowingly –

“(A) uses an interactive computer service to send a specific person or persons under 18 years of age, or

“(B) uses any interactive computer service to display in a manner available to a person under 18 years of age, “any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or

“(2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity “shall be fined under Title 18, or imprisoned not more than two years,

or both.”

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., 2000 WL 646196 (U.S. May 22, 2000).

B. COPA