v.

America Online Inc.

C.A. NO. 96-2486

America Online Inc.

v.

Cyber Promotions Inc.

C.A. NO. 96-5213

November 4, 1996 MEMORANDUM OPINION AND ORDER

Opinion: Weiner, J.

These cases present the novel issue of whether, under the First Amendment to the United States Constitution, one private company has the unfettered right to send unsolicited e-mail advertisements to subscribers of another private online company over the Internet and whether the private online company has the right to block the e-mail advertisements from reaching its members. The question is important because while the Internet provides the opportunity to disseminate vast amounts of information, the Internet does not, at least at the present time, have any means to police the dissemination of that information. We therefore find that, in the absence of State action, the private online service has the right to prevent unsolicited e-mail solicitations from reaching its subscribers over the Internet.

The cases have their genesis in a letter dated January 26, 1996, in which American Online, Inc. (“AOL”) advised Cyber Promotions, Inc. (“Cyber”) that AOL was upset with Cyber’s dissemination of unsolicited e-mail to AOL members over the Internet. AOL subsequently sent a number of “e-mail bombs” [1] to Cyber’s Internet service providers (“ISP”).

On March 26, 1996, Cyber filed Civil Action No. 96-2486 in this Court against AOL in response to AOL’s “e-mail bombing” of Cyber’s ISPs. The Complaint alleges that as a result of AOL’s “e-mail bombing”, two of Cyber’s ISPs terminated their relationship with Cyber and a third ISP refused to enter into a contract with Cyber. The Complaint asserts a claim for violation of the Computer Fraud and Abuse Act, 18 U.S.C. Section 1030, as well as state law claims for intentional interference with contractual relations, tortious interference with prospective contractual relations and unfair competition. The Complaint seeks certain injunctive relief and damages.

On April 8, 1996, AOL filed a ten-count Complaint against Cyber in the United States District Court for the Eastern District of Virginia, alleging service and trade name infringement, service mark and trade name dilution, false designation of origin, false advertising, unfair competition, violations of the Virginia Consumer Protection Act, the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act and the Virginia Computer Crimes Act. AOL seeks various injunctive relief and damages.

On May 8, 1996, Cyber filed a First Amended Complaint in Civil Action No. 96-2486 in which it asserted the same four claims it asserted in its original Complaint and added a declaratory judgment claim (Count V). Cyber seeks, inter alia, a “declaration that [it] has the right to send to AOL members via the Internet unsolicited e-mail advertisements.” Amended Complaint at p. 21. Cyber also asks the Court to “permanently enjoin[] AOL … from … directly or indirectly preventing AOL members from receiving [Cyber's] e-mail messages.” Id.

On June 17, 1996, AOL filed a First Amended Complaint in the Virginia action in which it added claims for misappropriation, conversion, and unjust enrichment.

By Order dated July 24, 1996, the judge in the Eastern District of Virginia to whom AOL’s action was assigned, transferred that action to this Court, finding that it arises from “the same nucleus of operative facts” as Cyber’s action and that therefore “the two cases should be consolidated for trial.” Upon transfer to this Court, AOL’s action was assigned Civil Action No. 96-5213. The parties have agreed that the First Amended Complaint in that action will be treated as setting forth in AOL’s counterclaims in Civil Action No. 96-2486.

AOL has vehemently argued throughout the brief history of these suits that Cyber has no right to send literally millions of e-mail messages each day to AOL’s Internet servers free of charge and resulting in the overload of the e-mail servers. Indeed, the court has received a plethora of letters from disgruntled AOL members who object to having to receive Cyber’s unsolicited e-mail whenever they sign on to AOL despite repeated attempts to be removed from Cyber’s lists. Cyber, on the other hand, has contended that without the right to send unsolicited e-mail to AOL members, it will go out of business.

Recognizing that Cyber’s contention that it has the right to send unsolicited e-mail to AOL members over the Internet implicates the First Amendment and therefore is a threshold issue, the Court directed the parties to brief the following issue: Whether Cyber has a right under the First Amendment of the United States Constitution to send unsolicited e-mail to AOL members via the Internet and concomitantly whether AOL has the right under the First Amendment to block the e-mail sent by Cyber from reaching AOL members over the Internet. In response, AOL has filed a document entitled “Motion for Partial Summary Judgment of America Online, Inc. on First Amendment issues.” Specifically, AOL seeks summary judgment on Cyber’s declaratory judgment claim asserted in Count V of Cyber’s First Amended Complaint. Cyber has filed a document entitled “Plaintiff’s Memorandum in Support of its First Amendment Right to Send Internet E-Mail to Defendant’s Members.”

The Court also directed the parties to enter into a Stipulation of Facts solely for the purpose of resolving the First Amendment issue. Pursuant to the Court’s directive, the parties have stipulated to the following facts:

1. Cyber is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, having a place of business at 1255 Passmore Street, 1st Floor, Philadelphia, Pennsylvania 19111.

2. AOL is a corporation organized and existing under the laws of the State of Delaware with its principal place of business at 22000 AOL Way, Dulles, Virginia 20166.

3. AOL was and is a private online company that has invested substantial sums of its own money in equipment, name, software and reputation. AOL is not owned in whole or in part by the government.

4. AOL is owned by shareholders, and its stock trades on the New York Stock Exchange.

5 . AOL’s members or subscribers pay prescribed fees for use of AOL resources, access to AOL and access and use of AOL’s e-mail system and its connection to the Internet.

6. AOL’s e-mail system operates through dedicated computers known as servers, which consist of computer hardware and software purchased, maintained and owned by AOL. AOL’s computer servers have a finite, though expandable, capacity to handle e-mail. All Internet e-mail from non-AOL members to AOL customers or members and from AOL customers or members to non-AOL members requires the use of AOL’s computer hardware and software in combination with the hardware and software of the Internet and the hardware and software of the non-AOL members.

7. There has been no government involvement in AOL’s business decision to institute or reinstitute a block directed to Internet e-mail sent by Cyber to AOL members or subscribers.

8. Although the Internet is accessible to all persons with just a computer, a modem and a service provider, the constituent parts of the Internet (namely the computer hardware and software, servers, service providers and related items) are owned and managed by private entities and persons, corporations, educational institutions and government entities, who cooperate to allow their constituent parts to be interconnected by a vast network of phone lines.

09. In order for non-AOL members to send Internet e-mail to AOL members, non-AOL members must utilize a combination of their own hardware and software, the Internet and AOL’s network.

10. To obtain its initial access to the Internet, AOL obtained an Internet address and domain name from IANA, a clearing house that routinely and magisterially assigns Internet addresses and domain names.

11. Cyber, an advertising agency incorporated in 1996, provides advertising services for companies and individuals wishing to advertise their products and services via e-mail.

12. Cyber sends its e-mail via the Internet to members of AOL, members of other commercial online services and other individuals with an Internet e-mail address.

13. AOL provides its subscribing members with one or more e-mail addresses so that members can exchange e-mail with one another and exchange e-mail (both sending and receiving) over the Internet with non-AOL members.

14. AOL has attached to its Memorandum of Law in Support of its Motion for Partial Summary Judgment on First Amendment Issues three sets of examples of e-mail messages sent by Cyber to AOL members. The first set (Tab 1) consists of a multi-page set of advertisements; the second set (Tab 2) consists of an exclusive or single-advertiser e-mail; and the third set (Tab 3) consists of a document called by Cyber an “e-mag.” Under each tab are two examples, the first selected by AOL and the second selected by Cyber. The Court has reviewed all of the examples and notes that many of the ads include get-rich-quick ads, weight loss ads, health aid promises and even phone sex services.

15. To attract membership, AOL offers a variety of services, options, resources and support, including content-based services, access to stock quotes, children’s entertainment, news, and the ability to send and receive Internet e-mail to and from non-AOL members.

16. In addition to the parties’ Stipulation of Facts, it is necessary for resolution of the issue before us to relate some of the factual findings about the Internet itself made earlier this year by our court in American Civil Liberties Union v. Reno, 929 F.Supp. 824 (E.D. Pa. 1996). They are as follows:

17. “The Internet is … a unique and wholly new medium of worldwide human communication.” Id. at 844.

18. The Internet is “a giant network which interconnects innumerable smaller groups of linked computer networks.” Id. at 830. In short, it is “a global Web of linked networks and computers …” Id. at 831.

19. “The Internet is an international system.” Id. It is “a decentralized, global medium of communications — or ‘cyberspace’ — that links people, institutions, corporations, and governments around the world. This communications medium allows any of the literally tens of millions of people with access to the Internet to exchange information.” Id.

20. “No single entity — academic, corporate, governmental, or non-profit — administers the Internet. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocol to exchange communications and information with other computers (which in turn exchange communications and information with still other computers).” Id. at 832.

21. Computer users have a wide variety of avenues by which to access the Internet. Id. One such avenue is “through one of the major national commercial ‘online services’ such as [AOL] … Id. at 833. These online services offer nationwide computer networks (so that subscribers can dial-in to a local telephone number), and the services provide extensive and well organized content within their own proprietary computer networks. In addition to allowing access to the extensive content available within each online service, the services also allow subscribers to link to the much larger resources of the Internet.” Id. (emphasis in original). “The major commercial online services have almost twelve million individual subscribers across the United States.” Id. Approximately six million individuals are subscribers of AOL.

22. There are a number of different ways to communicate over the Internet. One such way “is via electronic mail, or ‘e-mail’, comparable in principle to sending a first class letter. One can address and transmit a message to one or more other people.” Id. at 834.

23.”The content on the Internet is as diverse as human thought.” Id. at 842.

24. “Communications over the Internet do not ‘invade’ an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter content ‘by accident.’” Id. at 844.

25. Unlike a radio or television, “the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial.” Id. at 845.

STANDARD OF REVIEW

[Indexed as: R. v. Pecciarich]
Ontario Court (Provincial Division) Sparrow Prov. Div. J.

April 6, 1995

Criminal law – Pornography – Distribution – Accused sending computer files to computer bulletin board – Files admitted to be child pornography – Accused convicted of distributing child pornography.

Criminal law – Evidence – Documents – Hearsay – Circumstantial evidence – Accused charged with distributing child pornography by sending computer files to computer bulletin board – Accused using code name – Identity of accused proven by circumstantial evidence – Documents found in accused’s possession and files on accused’s computer used as original circumstantial evidence that accused and the code name were linked in meaningful way – Inference that accused and person using code name were same person.

JP was charged with one count of distributing obscene pictures and one count of distributing child pornography by using his personal computer to upload, i.e., to send, computer files to a computer bulletin board where the files could be downloaded, i.e., received by other computer users. The charges arose after an investigation in which KB, a computer expert, download computer bulletin boards The files bore the identification of having been Zephyr scan “Recent Zephyr”, and certain images contained the words “Recent Zephyr scan”. Pursuant to a search warrant, a search was made of JP’s bedroom and, among other things, documents, catalogue pictures, lewd pictures of children, a manila folder labelled “Recent Zephyr’s Software and such”, and JP’s computer system were seized. The system included a backup tape and a scanner, a device permitting images to be reproduced on a computer where they could be altered. A printout was made of items stored on the backup tape, and the items included various documents identified by references to Recent Zephyr. The printout included a Series of images which appeared to be steps in the creation of one Zephyr. One of these images bore JP’s name. It was admitted that the images and text were obscene and pornographic; however, the accused argued that the Crown had not proven that it was he, using the code name Recent Zephyr, who had uploaded the computer files, and the accused argued that uploading computer files did not constitute as defined by law.

Held, the accused should be convicted only on the count of distributing child pornography.

There was no admissible evidence to prove uploading of obscene material, and the accused should be acquitted on this count; the other, however, was proven. The evidence established that the accused was Recent Zephyr. The fact that many documents in the accused’s computer exhibit the name Recent Zephyr tended to indicate that the code name was his. Further, the accused knew that he had documents in his computer containing references to child pornography with the name Recent Zephyr on a matching image. This correspondence was a piece of original or real circumstantial evidence that the accused and Recent Zephyr were one. It was logical to assume that someone would not leave his name on illegal material on a backup tape if he were not somehow connected to it or involved in its creation. Given that the accused’s possessed a scanner and given that certain similar to drawings and pictures in the accused’s possession, it was reasonable to conclude that he created the images placed on the bulletin board which bore the name Recent Zephyr did not violate the hearsay rule; the documents were used as pieces of original circumstantial evidence that the accused and the name Recent Zephyr were so frequently linked in a meaningful way as to create the logical inference that they were same person. Having found that the accused used the name Recent Zephyr, it could be conclude that the documents on his backup tape purportedly authored by him were his creations and were as such admission that he uploaded the files containing child pornography. To suggest that the files were created by an imposter but knowingly stored by him on a backup tape was conjecture without any evidentiary support. Finally, as a matter of law, uploading files onto a computer board where the public has access to them was distribution.

Cases referred to

R. v. B. (G) (No.1), [1990] 2 S.C.R. 3, 56 C.C.C. (3d) 161, 77 C.R. (3d) 327, 111 N.R. 1;
R v. Bastien (1968), 20 C.C.C. (2d) 562 (B.C.Co.Ct.);
R. v. Evans, [1993] 3 S.C.R. 653, 85 C.C.C. (3d) 97, 25 C.R. (4th) 46, 108 D.L.R. (4th) 32;
R. v. Householders T.V. & Appliances Ltd. (1984), 20 C.C.C. (3d) 561 (Ont. Co. Ct.), affd loc. cit. p.571 (Ont. C.A.);
R. v. McCrum (1974), 21 C.C.C (2d) 343, 9 N.B.R. (2d) 66 (C.A.);
R. v. Morrissery (1995), 22 O.R. (3d) 514 (C.A.);
R. v. Sudbury News Service Ltd. (1978), 18 O.R. (2d) 428, 39 C.C.C. (2d) 1 (C.A.)

Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, ss. 601, 786

Authorities referred to

McWilliams, P.K. Canadian Criminal Evidence, 3rd ed., p. 10310
Phipson on Evidence, 13th ed. (1982), para. 21-09

TRIAL on charges of distributing obscene pictures and child pornography

Philip Enright, for the Crown.
John Collins, for accused.

SPARROW PROV. DIV. J.: — The accused Joseph Pecciarich is charged that (1) between the 20th day of August, 1993 and the 28th day of August 1993 he unlawfully did distribute obscene pictures, to wit a series of files of computer images, and (2) between the 7th day of August 1993 and the 30th day of September 1993 he unlawfully did distribute child pornography, to wit a series of computer images and text files. In short, he is accused of using his personal computer to send the obscene texts and images to one or more computer distribution centres referred to as bulletin boards, where they can be accessed by or sent to other computer users.

The Facts

Defence counsel has admitted that the images and texts in question are obscene and pornographic as charged; however, he argues that the Crown has proved neither distribution in fact by his client, nor distribution as defined by law.

The case commenced with a voir dire regarding certain statements made to police by the accused, which were ultimately ruled admissible. They occurred during, and immediately after the execution of a search warrant on October 21, 1993 at his home at 2024 Millway Gate in Mississauga, where he was found lying on the bed in his upstairs bedroom. His computer system, a brown brief case filled with documents, catalogue pictures and sketches, and other items were seized in the bedroom.

The investigation which commenced in mid-July 1993, and lasted through mid-October, was led by Detective Constables Sweeney and Sutherland, and conducted largely by computer specialist Kevin Blumberg. Mr. Blumberg was engaged specifically for the purpose of reviewing materials made available to computer users via computer bulletin boards and locating items which were obscene and/or in the nature of child pornography or hate literature. He did so by using a directory of bulletin boards called “Toronto Computes”, contacting those which appeared to provide adult items and identifying images and texts which appeared to fall within the categories described above.

Mr. Blumberg explained that in order to access a bulletin board, he would enter a number, and then fill out an application to use the bulletin board, which would be accepted or declined by the manager, known as the systems operator. Mr. Bllumberg would then scrutinize the available files, and “download”, or replicate certain files or catalogues of file descriptions which he thought would be of interest to the police. These select items would be stored on the hard drive, or permanent storage area of his computer.

In exchange for receiving the “downloaded” material, Mr. Blumberg, using the alias “Romulus”, would provide a file as consideration, usually being one-third or one-quarter of the size of the downloaded file. The file is delivered by a process known as “uploading”, or transferring from a personal computer to another computer system such as a bulletin board. He described the programs he provided as “general” in nature. In other relevant testimony he stated that many of the files which he downloaded were identifiable by the terms “GIF” (Graphic Interchange Format) indicating a particular type of format for graphics or pictures, and “ZIP” indicating textual information that is compressed and must be brought back to its original state with a particular program.

After generally describing the way in which computer bulletin boards are accessed, Mr. Blumberg testified as to how on August 16, 1993 he contacted “the Gateway” — the major site of the obscene and pornographic material allegedly “uploaded” or distributed by the accused. His application was accepted by the systems operator, identified as one Michael Keating, who verified Mr. Blumberg’s identity and age by calling him back personally. Verification of his access thereafter was done by a computer driven system. The bulletin board was identified as containing adult files GIF, the “Cosysop” (co-systems operator) was identified as “The World Famous Recent Zephyr”, the alleged code name of the accused. He then examined a catalogue of available files, containing a brief description, date of creation, and date of uploading, and selected seven for downloading and storage to be reviewed by the police.

Regarding the files listed in count 2 of the information, Mr. Blumberg testified that on August 20, 1993, he downloaded YNGFUN 10.ZIP and YNGFUN 11.ZIP, both of which were identified as productions of RECENT ZEPHYR, copyright 1993. He testified that both text files were seen on the Gateway as well as other bulletin boards.

In further evidence addressing the second count, Mr. Blumberg testified that the graphic, or pictorial files Moppet 1.GIF through Moppet 4.GIF were downloaded by him on September 20, 1993, all exhibiting on screen a printed statement that they were uploaded by Recent Zephyr on dates in August and September, 1993. A sample description of MOPPET 01 was “A Gateway original GIF”! Two with girls fully nude and a younger one without panties, and just pulling off the top! He testified that all remaining files specified in count 2 of the information were seen on either the Gateway or another bulletin board such as “Scruples”, and all were identified as having been uploaded by Recent Zephyr on August 3, 1993. Only certain ones were downloaded and stored, due to time and space limitations.

Regarding the files of allegedly obscene pictures specified in count 1, Mr. Blumberg testified that they were all described as having been uploaded onto the Gateway by Recent Zephyr on dates in August 1993. Certain files contained a limited amount of graphic text such as “Guy and girl have sex and piss on each other in the series”, in file PDRNKRI.GIF. Again, only certain files were downloaded and stored by Mr. Blumberg. Other files purportedly uploaded by Recent Zephyr were seen on many bulletin boards, and sometimes identified as associated with the company names “Yes Software” and “UCP Software”.

In other evidence in chief, Mr. Blumberg described how a device called a scanner, seized in the accused’s bedroom, can be stroked across an image such as a picture of a child from a catalogue in order to reproduce it on a computer file. Once stored in the computer, other software could be used to make changes such as removing clothing and “drawing in” body parts including genitalia. In cross-examination, Mr. Blumberg acknowledged that even if images were uploaded by a subscriber to the bulletin board, the systems operator could make the alterations described above. In addition, the operator could insert the words “uploaded by Recent Zephyr”, without his knowledge. Furthermore, an imposter could upload materials onto the bulletin board in the name of another subscriber, using his telephone number without his knowledge; however, in testimony which was less than crystal clear, Mr. Blumberg explained that a system of call back verification may or may not pick up on the false identity of the uploader.

Following Mr. Blumberg, Detective Constable Sweeney gave testimony concerning all items seized from the bedroom of the accused and the alleged links between those items and the files viewed on the bulletin boards and specified in the information. Defence counsel does not dispute that these items were in his client’s possession, but argues that most of them are hearsay in nature, and therefore cannot be used to link his client to the obscene and pornographic material. I will now describe each item by exhibit number.

Exhibit 1 — Brown briefcase from closet containing documents.

1(a) — Catalogue picture of three children in bathing suits. The Crown argues that it is a definite match to ex. 1(c) on argument, the picture labelled “Moppet” 04.GIF, viewed on the Gateway Bulletin Board, except that the girls’ clothing has been removed;

1(b) — catalogue picture of children in a wading pool, which the Crown argues matches ex. 1(b) on argument, except that the boy has been moved on top of the girl and the clothing removed;

1(c) — a scrapbook of newspaper articles concerning sexual assault trials and pending child pornography legislation;

1(d) — a piece of paper with catalogue cutouts, a drawing of a naked child and man, and a drawing of a naked girl being held in an obscene pose by a boy. The Crown argues that the latter drawing matches ex. 9(d), a printout of an image which was located on a bulletin board and identified with the markings “Forestwood Kids”, “Recent Zephyr”, and “RZ” (see testimony of Detective Sweeney referred to below). The same image and a series of images which seem to be stages in the development of Exhibit 9(d) were located on the accused’s computer are are described below.

1(e) — a manila folder labelled “Recent Zephyr’s Software and Such”. The folder contains three printouts of a lewd story entitled “The Forestwood Kids”, by Y.E.S. (youth entering sex), referring to child characters such as Jammie, Alison, Adam and Courtney, and a scribbled draft of a lewd story entitled YNGFUN*ZIP. The story was also seen by Detective Sweeney on the Gateway;

1(f) — a hand-drafted directory of names, addresses and phone numbers of children in Mississauga, including L.P, C.H, J. who lives on Forestwood Drive, E. and E.;

1(g) — an envelope with “Lots of Young Fun” written on the outside, and a draft lewd story inside referring to children’s names seen in ex. 1(e) and (f); and with the words “Ultimate Connection BS” at the top of one page;

1(h) — an envelope with Lots of Young Fun”, “rough outline”, “story series” and “Years of fun (YRSFUN*.ZIP), continued from series one”, written on the outside, and draft suggestions for a lewd story inside;

1(i) — a sheet of scribbles referring to four of the files specified in count 2;

1(j) — a baby book with photos cut out;

1(k) — 2 pages of baby photos;

1(l) — a chart referring to pages and sizes;

2-7 — Computer, related parts, and scanner

===============================================================
This opinion is uncorrected and subject to revision before Publication in the New York Reports.
———————————————————————————————————-
2 No. 49

The People &c., Appellant,
v.

Jeffrey Kozlow, Respondent.

Robert K. Sauer, for appellant.
Nathaniel Z. Marmur, for respondent.
Hon. Andrew M. Cuomo, Attorney General of the State of New York; New York State District Attorneys Association, amici curiae.

PIGOTT, J.:

We hold that a defendant charged with attempted dissemination of indecent material to minors in the first degree under former Penal Law § 235.22 (L 1996, ch 600) may properly be convicted under that statute even though his communications contained no nude or sexual images.

On March 4, 2004, defendant Jeffrey Kozlow entered an Internet chat room and, by instant messaging, approached a person with the screen name “JohnInYonkers914,” who immediately gave his age as 14. “I’m 42; I’m into younger guys,” Kozlow wrote, “U
into guys my age?” (punctuation added). Unbeknownst to Kozlow, JohnInYonkers914 was an undercover investigator. Later that month, the two exchanged photographs of themselves, fully clothed, the investigator sending photographs of an adolescent boy. Kozlow asked JohnInYonkers914 about his sexual orientation and, repeatedly, about masturbation. In April, Kozlow began to describe, in the text of his instant messages, sexual acts he enjoyed. He also described various imagined sexual encounters they might have, involving oral and anal sex. Kozlow did not, however, send any pornographic images or other pictorial representations of nudity or sex.

In May, the two made plans to meet in Westchester County. Although Kozlow repeatedly told JohnInYonkers914 that at first they were “just going to talk,” he also mentioned that he would “get a room” if the two decided to have sex, and he described sexual acts in which they might engage. Kozlow cancelled these plans but, in June, after JohnInYonkers914 said that his parents had given him permission to travel into Manhattan by himself, Kozlow quickly suggested a meeting. The two agreed to meet at 11:30 a.m. on June 28, 2004 at a magazine store at Grand Central Terminal. Kozlow was arrested leaving the store at 11:28.

Kozlow was charged with five counts of attempted dissemination of indecent material to minors in the first degree (Penal Law § 110, former Penal Law § 235.22). His bench trial commenced in County Court in May 2005. The evidence primarily consisted of transcripts of the instant messages and of e-mails. Kozlow moved to dismiss the charges, arguing, among other things, that Penal Law § 235.22 applied only when a defendant’s communication to a minor involved indecent pictorial representations. County Court denied Kozlow’s motion, and ultimately convicted him on all counts.

The Appellate Division reversed defendant’s conviction and dismissed the indictment, reasoning that Kozlow’s communications could not have “depicted” sexual conduct within the meaning of Penal Law § 235.22 (1), since they included no visual, sexual images (31 AD3d 788). A Judge of this Court granted leave to appeal, and we now reverse.

In 1996, the New York State Legislature introduced statutes criminalizing the transmission of indecent material to minors over the Internet. Former Penal Law § 235.22 provided that, to be guilty of disseminating indecent material to minors in the first degree, a person must intentionally communicate by computer with a minor “knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors” (former Penal Law § 235.22 [1] [emphasis added]). Additionally, the person must use the computer communication to lure a minor “to engage in sexual intercourse, oral sexual conduct or anal sexual conduct, or sexual contact with him, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his benefit” (former Penal Law § 235.22 [2]). This first-degree offense was designated a class D felony.

We begin with a brief observation about the ordinary meaning of the word “depict.” While one meaning of “depict” is “to represent in a picture,” and the etymology of the word lies in the Latin “pingere” (“to paint”), the word “depict” also has a standard sense of “to represent or portray in words” and it has been used in that manner since the colonial era (see 4 Oxford English Dictionary 477 [2d ed 1989]).

Turning to legislative intent, the purpose of the New York State Legislature in enacting Penal Law § 235.22 in 1996 (see L 1996, ch 600) may be discerned from the range of concerns expressed by its proponents and sponsors. In the mid-1990s, law enforcement officials and legislators were alarmed by the increasing use of computers by pedophiles to contact minors. Lawmakers proposed § 235.22 partly in response to the highly publicized case of Alan Paul Barlow (see Governor’s Mem approving L 1996, ch 600, 1996 McKinney’s Session Laws of NY, at 1901; Letter of Westchester County District Attorney to Governor Pataki, dated February 13, 1996, Bill Jacket, L 1996, ch 600, at 25). Posing as a 13-year-old boy, Barlow, a 51-year-old resident of Seattle, Washington, wrote sexually explicit emails to a 14- year-old girl in Westchester County. He was arrested in New York in June 1994 after arranging to meet the girl near her home, and was charged with endangering the welfare of a child – a misdemeanor. The sponsors of the 1996 legislation, explaining how such incidents justified the proposed laws, described the email communications they sought to criminalize as predominantly textual. “Typically, the pedophile, posing as a minor, makes contact, wins the confidence of the minor and slowly begins to draw the victim into discussions of sex and sexuality.” (Senate Introducer’s Mem in Support of L 1996, ch 600, 1996 McKinney’s Session Laws of NY, at 2524 [emphasis added].)

We therefore reject defendant’s contention that the Legislature intended to limit the scope of Penal Law § 235.22 to sexual predators who use images, rather than words, to lure minors. Nowhere in the history of the statute do we find evidence of such a narrow intent. On the contrary, it is clear that the legislators intended to criminalize the activities of adults who engage minors in “sexually infused communication” (Senate Introducer’s Mem in Support at 2524 [emphasis added]).

Moreover, the Legislature was surely aware that a sexually explicit text may be used as a means of seduction just as effectively as a sexual image. The lawmakers observed that pedophiles first try to win the confidence of their victims (Senate Introducer’s Mem in Support at 2524); they could not have thought that this process was limited to the transmission of pornographic images. Indeed, the logic of communication dictates just the opposite — that images alone would not enable the sender to entice a minor to a meeting. Defendant’s argument, therefore, that the Legislature was seeking to criminalize the luring of a child into a sexual encounter by transmission of visual images, while leaving a loophole allowing a predator to lure a child into sex through transmission of words alone, falls of its own weight. As the Attorney General points out in his amicus brief urging reversal, such an interpretation would render the law almost useless; a recent national study suggests that only 18% of perpetrators of internet-related sex offenses against minors transmitted sexual pictures to their victims (see Janis Wolak, et al., Internet-initiated Sex Crimes against Minors: Implications for Prevention Based on Findings from a National Study, 35 Journal of Adolescent Health 424.e11, 424.e16-424.e17 [2004], available at www.unh.edu/ccrc/pdf/CV71.pdf).

Defendant alternatively contends that the Legislature may have intended a limited proscription of transmission of visual depictions of sexuality to minors because of concern that the statute would run afoul of constitutional challenges if it applied to purely textual communications. We note, however, that the sponsors of the bill expressly mentioned several respects in which it was drafted so as to be “consistent with the recently passed Federal Communications Decency Act and Constitutional requirements” (Senate Introducer’s Mem in Support at 2524). For example, the bill provides a defense for those who make good faith efforts to avoid contacts with minors, and the sponsors note that the accompanying definition of “harmful to minors” was intended to be consistent with Federal law (id. at 2524-2525).3 But nowhere do any legislators suggest that the word “depict” was chosen to ensure consistency with Federal law. (id. at 2524-2525).

It is certainly true that the preexisting language of Penal Law § 235.21 distinguishes between a “visual representation or image . . . which depicts nudity, sexual conduct or sado-masochistic abuse” (Penal Law § 235.21 [1] [a]) and “explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse” (Penal Law § 235.21 [1] [b]). The words “depicts … nudity, sexual conduct or sado-masochistic abuse” were repeated in the 1996 amendments, in both § 235.21 (3) and § 235.22 (1), and the corresponding language regarding verbal descriptions and narrative accounts was not used. But we cannot conceive that this outcome was the result of a deliberate decision to limit the scope of the statute to pictorial representations, at the time that it was being expanded into the multifaceted area of computer communications. On the contrary, we think it far more likely that legislators considered the word “depict” broad enough in meaning to cover a wide range of indecent materials.

Nor can defendant find refuge in People v Foley (94 NY2d 668 [2000], cert denied 531 US 875 [2000]), in which we upheld the constitutionality of Penal Law § 235.22. In that case, defendant sent pictures of minors engaging in sexual acts to a person he believed to be a 15-year-old girl, whom he met in an Internet chat room. Accordingly, the language of our opinion turned more than once to pedophiles’ use of sexual images to lure minors (see e.g. id. at 681). But Foley does not stand for the proposition that a sexual predator must send his target sexual images in order to violate Penal Law § 235.22. Indeed, the statute was correctly construed to criminalize the use of any “sexually explicit communications” intended to lure children into sexual conduct (94 NY2d at 674 [emphasis added]).

Finally, we reject defendant’s theory that Penal Law § 235.22 is void for vagueness if the word “depict” is interpreted to include textual descriptions. A legislative decision to use language that is imprecise and open-ended “does not render a statute fatally vague if that language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices’” (People v Shack, 86 NY2d 529, 538 [1995], quoting United States v Petrillo, 332 US 1, 8 [1947]). We see no reason to depart from our holding in Foley that the statute is not unconstitutionally vague (94 NY2d at 680-682 [upholding § 235.22 against a vagueness challenge to subsection (2)]).

Because the Appellate Division reversed on the basis of its ruling on the “depiction” issue, it saw no need to address the parties’ other contentions. Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for consideration of the facts and issues raised but not determined on the appeal to that court.

People v Jeffrey Kozlow

No. 49

SMITH, J.(dissenting) :

We all agree that what defendant did should be a felony. But I conclude that, unfortunately, the Legislature did not make it one until it amended the statute in 2007. I
therefore dissent.
The primary meaning of “depict,” in every dictionary I have consulted, is to represent by a picture (Merriam-Webster’s Collegiate Dictionary [10th Ed 1993] at 310; Random House- Webster’s College Dictionary [1991] at 363; Oxford English Dictionary at 210). As all these dictionaries say, “depict” can also be used as a synonym for “describe,” but if the Legislature intended to reach both pictures and words the obvious way to do so was to say “depicts or describes.” Elsewhere in article 235 of the Penal Law, the Legislature used “depicts” alone when it was referring only to visual representations (Penal Law § 235.21 [1] [a] ["picture, photograph . . . or similar visual representation . . . which depicts"]); “descriptions” when it referred to purely verbal material (Penal Law § 235.21 [1] [b] ["verbal descriptions or narrative accounts"]); and “depicts or describes” and “depiction or description” when it referred to both (Penal Law § 235.00 [1] ["depicts or describes in a patently offensive manner"; Penal Law § 235.00 [6] ["explicit depiction or description" of certain conduct]).

From a reading of article 235 as a whole, it seems fairly clear that the Legislature was using “depicts” in its primary, narrow sense. In construing a criminal statute, we should not give it a broader interpretation than the one a reasonable reader would draw from its text (see People v Case, 42 NY2d 98, 101 [1977]; People v Gottlieb, 36 NY2d 629, 632 [1975]). It is true, as the majority points out (majority op at 4-6), that comments in the legislative history — not specifically focused on the meaning of “depicts” — show that some of the legislation’s supporters thought it would reach non-pictorial material, but this does not seem to me enough reason to reject the apparent meaning of the statute itself.

If anything, I would give more weight to the expressed views of lawyers for the State who argued, in litigation that followed the statute’s enactment, that “depicts” referred only to images, not to words. The State took this position in two cases, in which it defended the constitutionality of two sections of the 1996 legislation directed at the use of the internet by sexual predators. The State plainly thought then that the more narrowly
the statutes were read, the likelier they were to be upheld. Thus the Attorney General in American Libraries Assn. v Pataki (969 F Supp 160 [SD NY 1997]), and both the Attorney General and the District Attorney in People v Foley (94 NY2d 668 [2000]), argued that the legislation covered only images.

The State’s arguments had mixed success. Penal Law § 235.21, which prohibits disseminating certain material to a minor even where there is no attempt to engage the minor in sexual activity, was invalidated by the Federal District Court in the American Libraries case, and is no longer enforced. In the course of its ruling, the District Court concluded — mistakenly, I believe — that the meaning of “depicts” was not as narrow as the Attorney General said (969 F Supp at 178 n 9). On the other hand, in Foley, we held that the statute involved here, Penal Law § 235.22, was constitutional, and in doing so we seemed to adopt the State’s narrow reading of “depicts.” Four times in the Foley opinion, we described the statute as prohibiting the dissemination of “images” (94 NY2d at 676 ["prohibiting the dissemination of graphic images"], 681 ["dissemination of harmful, sexual images"], 682 ["dissemination of a certain category of images"], 684 ["transmission of sexually graphic images"]). I acknowledge that our decision in Foley did not turn on the distinction between images and words, and I do not question the State’s right to change its mind. But its switch does not inspire confidence in the interpretation it now adopts.

The majority argues that the Legislature could not have intended a narrow meaning of “depicts,” because that meaning would interfere with the legislative purpose. But the Legislature had more than one purpose in 1996; and its purposes may have contradicted each other, because the Legislature chose to use identical words in describing two significantly different crimes.

The 1996 legislation added computer transmissions to the definition of the existing offense of disseminating indecent material to minors, and added “in the second degree” to that offense’s title. The second degree offense may be committed just by knowing dissemination, without any attempt to induce conduct by the minor (Penal Law § 235.21). The same legislation also created the new offense of disseminating indecent material to minors in the first degree (Penal Law § 235.22), the crime at issue here, which can be committed only by one who “importunes, invites or induces a minor to engage in” certain sexual conduct. Sending a communication that “depicts” particular material is an
element of both offenses (Penal Law § 235.21 [3]; § 235.22 [1]).

The statute creating the new form of the second degree offense stood, as the American Libraries case was to show, on shaky constitutional ground, and the Legislature had every reason to write it as narrowly as possible in the hope of withstanding a challenge. There was no reason to be equally cautious in defining the first degree crime; indeed, I cannot see why it should not be a felony to invite a minor to have sex by means of any electronic communication (though even the newly-amended 2007 version of the statute does not go that far). I do not know why the 1996 Legislature chose to use the same narrow language in defining the first-degree crime that it did in defining the lesser one. But I do not believe that language reaches the admittedly heinous behavior of defendant in this case, and I think the Appellate Division was right to reverse his conviction.

Order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts (CPL 470.25[2][d], 470.40[2][b]) and issues raised but not determined on the appeal to that court. Opinion by Judge Pigott. Chief Judge Kaye and Judges Ciparick, Graffeo and Read concur. Judge Smith dissents and votes to affirm in an opinion in which Judge Jones concurs.

Decided April 26, 2007

Appeal from the United States district court for the eastern district of Pennsylvania
No. 02-361. Argued March 5, 2003–Decided June 23, 2003

Two forms of federal assistance help public libraries provide patrons with Internet access: discounted rates under the E-rate program and grants under the Library Services and Technology Act (LSTA). Upon discovering that library patrons, including minors, regularly search the Internet for pornography and expose others to pornographic images by leaving them displayed on Internet terminals or printed at library printers, Congress enacted the Children’s Internet Protection Act (CIPA), which forbids public libraries to receive federal assistance for Internet access unless they install software to block obscene or pornographic images and to prevent minors from accessing material harmful to them. Appellees, a group of libraries, patrons, Web site publishers, and related parties, sued the Government, challenging the constitutionality of CIPA’s filtering provisions. Ruling that CIPA is facially unconstitutional and enjoining the Government from withholding federal assistance for failure to comply with CIPA, the District Court held, inter alia, that Congress had exceeded its authority under the Spending Clause because any public library that complies with CIPA’s conditions will necessarily violate the First Amendment; that the CIPA filtering software constitutes a content-based restriction on access to a public forum that is subject to strict scrutiny; and that, although the Government has a compelling interest in preventing the dissemination of obscenity, child pornography, or material harmful to minors, the use of software filters is not narrowly tailored to further that interest.

Held: The judgment is reversed.

201 F. Supp. 2d 401, reversed.

Chief Justice Rehnquist, joined by Justice O’Connor, Justice Scalia, and Justice Thomas, concluded:

1. Because public libraries’ use of Internet filtering software does not violate their patrons’ First Amendment rights, CIPA does not induce libraries to violate the Constitution, and is a valid exercise of Congress’ spending power. Congress has wide latitude to attach conditions to the receipt of federal assistance to further its policy objectives, South Dakota v. Dole, 483 U. S. 203, 206, but may not “induce” the recipient “to engage in activities that would themselves be unconstitutional,” id., at 210. To determine whether libraries would violate the First Amendment by employing the CIPA filtering software, the Court first examines their societal role. To fulfill their traditional missions of facilitating learning and cultural enrichment, public libraries must have broad discretion to decide what material to provide to their patrons. This Court has held in two analogous contexts that the Government has broad discretion to make content-based judgments in deciding what private speech to make available to the public. Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666, 672-674; National Endowment for Arts v. Finley, 524 U. S. 569, 585-586. Just as forum analysis and heightened judicial scrutiny were incompatible with the role of public television stations in the former case and the role of the National Endowment for the Arts in the latter, so are they incompatible with the broad discretion that public libraries must have to consider content in making collection decisions. Thus, the public forum principles on which the District Court relied are out of place in the context of this case. Internet access in public libraries is neither a “traditional” nor a “designated” public forum. See, e.g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 802-803. Unlike the “Student Activity Fund” at issue in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 834, Internet terminals are not acquired by a library in order to create a public forum for Web publishers to express themselves. Rather, a library provides such access for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality. The fact that a library reviews and affirmatively chooses to acquire every book in its collection, but does not review every Web site that it makes available, is not a constitutionally relevant distinction. The decisions by most libraries to exclude pornography from their print collections are not subjected to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently. Moreover, because of the vast quantity of material on the Internet and the rapid pace at which it changes, libraries cannot possibly segregate, item by item, all the Internet material that is appropriate for inclusion from all that is not. While a library could limit its Internet collection to just those sites it found worthwhile, it could do so only at the cost of excluding an enormous amount of valuable information that it lacks the capacity to review. Given that tradeoff, it is entirely reasonable for public libraries to reject that approach and instead exclude certain categories of content, without making individualized judgments that everything made available has requisite and appropriate quality. Concerns over filtering software’s tendency to erroneously “overblock” access to constitutionally protected speech that falls outside the categories software users intend to block are dispelled by the ease with which patrons may have the filtering software disabled. Pp. 6-13.

2. CIPA does not impose an unconstitutional condition on libraries that receive E-rate and LSTA subsidies by requiring them, as a condition on that receipt, to surrender their First Amendment right to provide the public with access to constitutionally protected speech. Assuming that appellees may assert an “unconstitutional conditions” claim, that claim would fail on the merits. When the Government appropriates public funds to establish a program, it is entitled to broadly define that program’s limits. Rust v. Sullivan, 500 U. S. 173, 194. As in Rust, the Government here is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purpose for which they are authorized: helping public libraries fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes. Especially because public libraries have traditionally excluded pornographic material from their other collections, Congress could reasonably impose a parallel limitation on its Internet assistance programs. As the use of filtering software helps to carry out these programs, it is a permissible condition under Rust. Appellees mistakenly contend, in reliance on Legal Services Corporation v. Velazquez, 531 U. S. 533, 542-543, that CIPA’s filtering conditions distort the usual functioning of public libraries. In contrast to the lawyers who furnished legal aid to the indigent under the program at issue in Velazquez, public libraries have no role that pits them against the Government, and there is no assumption, as there was in that case, that they must be free of any conditions that their benefactors might attach to the use of donated funds. Pp. 13-17.

Justice Kennedy concluded that if, as the Government represents, a librarian will unblock filtered material or disable the Internet software filter without significant delay on an adult user’s request, there is little to this case. There are substantial Government interests at stake here: The interest in protecting young library users from material inappropriate for minors is legitimate, and even compelling, as all Members of the Court appear to agree. Given this interest, and the failure to show that adult library users’ access to the material is burdened in any significant degree, the statute is not unconstitutional on its face. If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not this facial challenge. Pp. 1-2.

Justice Breyer agreed that the “public forum” doctrine is inapplicable here and that the statute’s filtering software provisions do not violate the First Amendment, but would reach that ultimate conclusion through a different approach. Because the statute raises special First Amendment concerns, he would not require only a “rational basis” for the statute’s restrictions. At the same time, “strict scrutiny” is not warranted, for such a limiting and rigid test would unreasonably interfere with the discretion inherent in the “selection” of a library’s collection. Rather, he would examine the constitutionality of the statute’s restrictions as the Court has examined speech-related restrictions in other contexts where circumstances call for heightened, but not “strict,” scrutiny–where, for example, complex, competing constitutional interests are potentially at issue or speech-related harm is potentially justified by unusually strong governmental interests. The key question in such instances is one of proper fit. The Court has asked whether the harm to speech-related interests is disproportionate in light of both the justifications and the potential alternatives. It has considered the legitimacy of the statute’s objective, the extent to which the statute will tend to achieve that objective, whether there are other, less restrictive ways of achieving that objective, and ultimately whether the statute works speech-related harm that is out of proportion to that objective. The statute’s restrictions satisfy these constitutional demands. Its objectives–of restricting access to obscenity, child pornography, and material that is comparably harmful to minors–are “legitimate,” and indeed often “compelling.” No clearly superior or better fitting alternative to Internet software filters has been presented. Moreover, the statute contains an important exception that limits the speech-related harm: It allows libraries to permit any adult patron access to an “overblocked” Web site or to disable the software filter entirely upon request. Given the comparatively small burden imposed upon library patrons seeking legitimate Internet materials, it cannot be said that any speech-related harm that the statute may cause is disproportionate when considered in relation to the statute’s legitimate objectives. Pp. 1-6.

Rehnquist, C. J., announced the judgment of the Court and delivered an opinion, in which O’Connor, Scalia, and Thomas, JJ., joined. Kennedy, J., and Breyer, J., filed opinions concurring in the judgment. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined.

UNITED STATES, et al., APPELLANTS v. AMERICAN LIBRARY ASSOCIATION, INC., et al.
on appeal from the united states district court for the eastern district of Pennsylvania
[June 23, 2003]

Certiorari to the United States court of appeals for the third circuit

No. 03-218. Argued March 2, 2004–Decided June 29, 2004

To protect minors from exposure to sexually explicit materials on the Internet, Congress enacted the Child Online Protection Act (COPA), 47 U. S. C. §231, which, among other things, imposes a $50,000 fine and 6 months in prison for the knowing posting, for “commercial purposes,” of World Wide Web content that is “harmful to minors,” but provides an affirmative defense to commercial Web speakers who restrict access to prohibited materials by “requiring use of a credit card” or “any other reasonable measures that are feasible under available technology,” §231(c)(1). COPA was enacted in response to Reno v. American Civil Liberties Union, 521 U. S. 844, in which this Court held that the Communications Decency Act of 1996, Congress’ first attempt to make the Internet safe for minors by criminalizing certain Internet speech, was unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available. Respondents, Web speakers and others concerned with protecting the freedom of speech, filed suit for a preliminary injunction against COPA’s enforcement. After considering testimony presented by both respondents and the Government, the District Court granted the preliminary injunction, concluding that respondents were likely to prevail on their argument that there were less restrictive alternatives to COPA, particularly blocking or filtering technology. The Third Circuit affirmed on different grounds, but this Court reversed, Ashcroft v. American Civil Liberties Union, 535 U. S. 564. On remand, the Third Circuit again affirmed, concluding, inter alia, that COPA was not the least restrictive means available for the Government to serve the interest of preventing minors from using the Internet to gain access to harmful materials.

Held: The Third Circuit was correct to affirm the District Court’s ruling that enforcement of COPA should be enjoined because the statute likely violates the First Amendment. Pp. 6-15.

(a) The District Court did not abuse its discretion when it entered the preliminary injunction. The abuse-of-discretion standard applies on review of such an injunction. Because 28 U. S. C. §1254(1)’s grant of appellate jurisdiction does not give this Court license to depart from an established review standard, Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 336, the injunction must be upheld and the case remanded for trial on the merits if the underlying constitutional question is close. There is therefore no need to consider the broader constructions of the statute adopted by the Court of Appeals. The District Court concentrated primarily on the argument that there are plausible, less restrictive alternatives to COPA. See Reno, 521 U. S., at 874. When plaintiffs challenge a content-based speech restriction, the Government has the burden to prove that the proposed alternatives will not be as effective as the challenged statute. Ibid. The purpose of the test is to ensure that speech is restricted no further than is necessary to accomplish Congress’ goal. The District Court’s conclusion that respondents were likely to prevail was not an abuse of discretion, because, on the record, the Government has not met its burden. Most importantly, respondents propose that blocking and filtering software is a less restrictive alternative, and the Government had not shown it would be likely to disprove that contention at trial. Filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, childless adults may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Promoting filter use does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. Filters, moreover, may well be more effective than COPA. First, the record demonstrates that a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. That COPA does not prevent minors from accessing foreign harmful materials alone makes it possible that filtering software might be more effective in serving Congress’ goals. COPA’s effectiveness is likely to diminish even further if it is upheld, because providers of the materials covered by the statute simply can move their operations overseas. In addition, the District Court found that verification systems may be subject to evasion and circumvention, e.g., by minors who have their own credit cards. Finally, filters also may be more effective because they can be applied to all forms of Internet communication, including e-mail, not just the World Wide Web. Filtering’s superiority to COPA is confirmed by the explicit findings of the Commission on Child Online Protection, which Congress created to evaluate the relative merits of different means of restricting minors’ ability to gain access to harmful materials on the Internet. §231, note. Although filtering software is not a perfect solution because it may block some materials not harmful to minors and fail to catch some that are, the Government has not satisfied its burden to introduce specific evidence proving that filters are less effective. The argument that filtering software is not an available alternative because Congress may not require its use carries little weight, since Congress may act to encourage such use by giving strong incentives to schools and libraries, United States v. American Library Assn., Inc., 539 U. S 194, and by promoting the development of filters by industry and their use by parents. The closest precedent is United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, which, like this case, involved a content-based restriction designed to protect minors from viewing harmful materials. The Court there concluded that, absent a showing that a less restrictive technological alternative already available to parents would not be as effective as a blanket speech restriction, the more restrictive option preferred by Congress could not survive strict scrutiny. Id., at 826. The reasoning of Playboy Entertainment Group, and the holdings and force of this Court’s precedents, compel the Court to affirm the preliminary injunction here. To do otherwise would be to do less than the First Amendment commands. Id., at 830. Pp. 6-12.

(b) Important practical reasons also support letting the injunction stand pending a full trial on the merits. First, the potential harms from reversal outweigh those of leaving the injunction in place by mistake. Extraordinary harm and a serious chill upon protected speech may result where, as here, a prosecution is a likely possibility but only an affirmative defense is available, so that speakers may self-censor rather than risk the perils of trial. Cf. Playboy Entertainment Group, supra, at 817. The harm done from letting the injunction stand pending a trial on the merits, in contrast, will not be extensive. Second, there are substantial factual disputes remaining in the case, including a serious gap in the evidence as to the filtering software’s effectiveness. By allowing the preliminary injunction to stand and remanding for trial, the Court requires the Government to shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, rather than excuse it from doing so. Third, the factual record does not reflect current technological reality–a serious flaw in any case involving the Internet, which evolves at a rapid pace. It is reasonable to assume that technological developments important to the First Amendment analysis have occurred in the five years since the District Court made its factfindings. By affirming the preliminary injunction and remanding for trial, the Court allows the parties to update and supplement the factual record to reflect current technology. Remand will also permit the District Court to take account of a changed legal landscape: Since that court made its factfindings, Congress has passed at least two further statutes that might qualify as less restrictive alternatives to COPA–a prohibition on misleading domain names, and a statute creating a minors-safe “dot-Kids” domain. Pp. 12-15.

322 F. 3d 240, affirmed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined. Scalia, J., filed a dissenting opinion. Breyer, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor, J., joined.

on writ of certiorari to the united states court of appeals for the third circuit

[June 29, 2004]

v.

ROBERT ALAN THOMAS (94-6648)
and CARLEEN THOMAS (94-6649),
Defendants-Appellants.

ON APPEAL from the United States District Court for the Western District of Tennessee

__________________

Decided and Filed January 29, 1996

Before: MARTIN and BATCHELDER, Circuit Judges; EDMUNDS, District Judge.[*]

Defendants Robert and Carleen Thomas appeal their convictions and sentences for violating 18 U.S.C.    1462 and 1465, federal obscenity laws, in connection with their operation of an electronic bulletin board. For the following reasons, we AFFIRM Robert and Carleen Thomas’ convictions and sentences.

I.

Robert Thomas and his wife Carleen Thomas began operating the Amateur Action Computer Bulletin Board System (“AABBS”) from their home in Milpitas, California in February 1991. The AABBS was a computer bulletin board system that operated by using telephones, modems, and personal computers. Its features included e-mail, chat lines, public messages, and files that members could access, transfer, and download to their own computers and printers.

Information loaded onto the bulletin board was first converted into binary code, i.e., 0’s and 1’s, through the use of a scanning device. After purchasing sexually-explicit magazines from public adult book stores in California, Defendant Robert Thomas used an electronic device called a scanner to convert pictures from the magazines into computer files called Graphic Interchange Format files or “GIF” files. The AABBS contained approximately 14,000 GIF files. Mr. Thomas also purchased, sold, and delivered sexually-explicit videotapes to AABBS members. Customers ordered the tapes by sending Robert Thomas an e-mail message, and Thomas typically delivered them by use of the United Parcel Service (“U.P.S.”).

Persons calling the AABBS without a password could view the introductory screens of the system which contained brief, sexually-explicit descriptions of the GIF files and adult videotapes that were offered for sale. Access to the GIF files, however, was limited to members who were given a password after they paid a membership fee and submitted a signed application form that Defendant Robert Thomas reviewed. The application form requested the applicant’s age, address, and telephone number and required a signature.

Members accessed the GIF files by using a telephone, modem and personal computer. A modem located in the Defendants’ home answered the calls. After they established membership by typing in a password, members could then select, retrieve, and instantly transport GIF files to their own computer. A caller could then view the GIF file on his computer screen and print the image out using his printer. The GIF files contained the AABBS name and access telephone number; many also had “Distribute Freely” printed on the image itself.

In July 1993, a United States Postal Inspector, Agent David Dirmeyer (“Dirmeyer”), received a complaint regarding the AABBS from an individual who resided in the Western District of Tennessee. Dirmeyer dialed the AABBS’ telephone number. As a non-member, he viewed a screen that read “Welcome to AABBS, the Nastiest Place on Earth,” and was able to select various “menus” and read graphic descriptions of the GIF files and videotapes that were offered for sale.

Subsequently, Dirmeyer used an assumed name and sent in $55 along with an executed application form to the AABBS. Defendant Robert Thomas called Dirmeyer at his undercover telephone number in Memphis, Tennessee, acknowledged receipt of his application, and authorized him to log-on with his personal password. Thereafter, Dirmeyer dialed the AABBS’s telephone number, logged-on and, using his computer/modem in Memphis, downloaded the GIF files listed in counts 2-7 of the Defendants’ indictments. These GIF files depicted images of bestiality, oral sex, incest, sado-masochistic abuse, and sex scenes involving urination. Dirmeyer also ordered six sexually-explicit videotapes from the AABBS and received them via U.P.S. at a Memphis, Tennessee address. Dirmeyer also had several e-mail and chat-mode conversations with Defendant Robert Thomas.

On January 10, 1994, a search warrant was issued by a U.S. Magistrate Judge for the Northern District of California. The AABBS’ location was subsequently searched, and the Defendants’ computer system was seized.

On January 25, 1994, a federal grand jury for the Western District of Tennessee returned a twelve-count indictment charging Defendants Robert and Carleen Thomas with the following criminal violations: one count under 18 U.S.C.   371 for conspiracy to violate federal obscenity laws–18 U.S.C.    1462, 1465 (Count 1), six counts under 18 U.S.C.   1465 for knowingly using and causing to be used a facility and means of interstate commerce–a combined computer/telephone system–for the purpose of transporting obscene, computer-generated materials (the GIF files) in interstate commerce (Counts 2-7), three counts under 18 U.S.C.   1462 for shipping obscene videotapes via U.P.S. (Counts 8-10), one count of causing the transportation of materials depicting minors engaged in sexually explicit conduct in violation of 18 U.S.C.   2252(a)(1) as to Mr. Thomas only (Count 11), and one count of forfeiture under 18 U.S.C.   1467 (Count 12).

Both Defendants were represented by the same retained counsel, Mr. Richard Williams of San Jose, California. They appeared twice in federal district court for the Northern District of California, San Jose division, before being arraigned on March 15, 1994, in federal court in Memphis, Tennessee. They did not retain local counsel for the Tennessee criminal prosecution. Both Defendants were tried by a jury in July, 1994. Defendant Robert Thomas was found guilty on all counts except count 11 (child pornography). Defendant Carleen Thomas was found guilty on counts 1-10. The jury also found that the Defendants’ interest in their computer system should be forfeited to the United States. Robert and Carleen Thomas were sentenced on December 2, 1994 to 37 and 30 months of incarceration, respectively. They filed their notices of appeal on December 9, 1994.

II.

A.

Defendants contend that their conduct, as charged in counts 1-7 of their indictments, does not constitute a violation of 18 U.S.C.   1465. This presents a question of statutory interpretation, a matter of law, and is reviewed by this court under a de novo standard. United States v. Hans, 921 F.2d 81, 82 (6th Cir. 1990).[1]

Defendants’ challenge to their convictions under counts 1-7, rests on two basic premises: 1) Section 1465 does not apply to intangible objects like the computer GIF files at issue here,[2] and 2) Congress did not intend to regulate computer transmissions such as those involved here because 18 U.S.C.   1465 does not expressly prohibit such conduct.

In support of their first premise, Defendants cite a Tenth Circuit dial-a-porn decision which holds that 18 U.S.C.    1462 and 1465 prohibit the interstate transportation of tangible objects; not intangible articles like pre-recorded telephone messages. See United States v. Carlin Commun. Inc., 815 F.2d 1367, 1371 (10th Cir. 1987). Defendants claim Carlin is controlling because transmission of the GIF files at issue under counts 1-7 involved an intangible string of 0’s and 1’s which became viewable images only after they were decoded by an AABBS member’s computer. We disagree.

The subject matter in Carlin–telephonic communication of pre-recorded sexually suggestive comments or proposals–is inherently different from the obscene computer-generated materials that were electronically transmitted from California to Tennessee in this case. Defendants erroneously conclude that the GIF files are intangible, and thus outside the scope of   1465, by focusing solely on the manner and form in which the computer-generated images are transmitted from one destination to another. United States v. Gilboe, 684 F.2d 235 (2nd Cir. 1982), cert. denied, 459 U.S. 1201 (1983), illustrates this point.

In Gilboe, the Second Circuit rejected the argument that the defendant’s transmission of electronic impulses could not be prosecuted under a criminal statute prohibiting the transportation of money obtained by fraud. The Gilboe court reasoned that:

[e]lectronic signals in this context are the means by which funds are transported. The beginning of the transaction is money in one account and the ending is money in another. The manner in which the funds were moved does not affect the ability to obtain tangible paper dollars or a bank check from the receiving account.

Id. at 238. The same rationale applies here. Defendants focus on the means by which the GIF files were transferred rather than the fact that the transmissions began with computer-generated images in California and ended with the same computer-generated images in Tennessee. The manner in which the images moved does not affect their ability to be viewed on a computer screen in Tennessee or their ability to be printed out in hard copy in that distant location.

The record does not support Defendants’ argument that they had no knowledge, intent or expectation that members of their AABBS would download and print the images contained in their GIF files. They ran a business that advertised and promised its members the availability and transportation of the sexually-explicit GIF files they selected. In light of the overwhelming evidence produced at trial, it is spurious for Defendants to claim now that they did not intend to sell, disseminate, or share the obscene GIF files they advertised on the AABBS with members outside their home and in other states.

We also disagree with Defendants’ corollary position, raised at oral argument, that they were prosecuted under the wrong statute and that their conduct, if criminal at all, falls within the prohibitions under 47 U.S.C.   223(b)[3] rather than 18 U.S.C.   1465. As recognized by the Supreme Court, Section 223(b) of the Communications Act of 1934, was drafted and enacted by Congress in 1982 “explicitly to address ‘dial-a-porn.’” Sable Communications of Cal., Inc. v. F.C.C., 492 U.S. 115, 120-121 (1989). Congress amended Section 223(b) in 1988 to impose a total ban “on dial-a-porn, making it illegal for adults, as well as children, to have access to sexually-explicit messages” that are indecent or obscene. Id. at 122-123.[4] 47 U.S.C.   223(b) addresses commercial dial-a-porn operations that communicate sexually-explicit telephone messages; not commercial computer bulletin boards that use telephone facilities for the purpose of transmitting obscene, computer-generated images to approved members.

Defendants’ second premise, that Congress did not intend to regulate computer transmissions because the statute does not expressly prohibit such conduct, is faulty as well. We have consistently recognized that when construing federal statutes, our duty is to “‘construe the language so as to give effect to the intent of Congress.’” United States v. Underhill, 813 F.2d 105, 111 (6th Cir.), cert. denied, 482 U.S. 906 (1987) (quoting United States v. American Trucking Associations, Inc., 310 U.S. 534, 542-44 (1940)). The Supreme Court observed this principle when it rejected an argument similar to one Defendants raise here, i.e., that Congress could not possibly have intended to include conduct not expressly prohibited in the statute. See United States v. Alpers, 338 U.S. 680 (1950).

In United States v. Alpers, the Supreme Court considered the question whether obscene phonograph records–at the time, a novel means of transmitting obscenity–came within the prohibition of 18 U.S.C.   1462. Initially, the Court acknowledged that criminal statutes are to be strictly construed and that “no offense may be created except by the words of Congress used in their usual and ordinary way.” Id. at 681. The Court emphasized, however, that Congress’ intent is the most important determination and statutory language is not to be construed in a manner that would defeat that intent.

Applying those principles, the Court held that the rule of ejusdem generis[5] should not be “employed to render general words meaningless” or “be used to defeat the obvious purpose of legislation.” Id. at 681-83. It recognized that “[t]he obvious purpose of [Section 1462] was to prevent the channels of interstate commerce from being used to disseminate” any obscene matter. Id. at 683. The Court further recognized that Section 1462 “is a comprehensive statute, which should not be constricted by a mechanical rule of construction.” Id. at 684. Accordingly, the Court rejected the defendant’s argument that the general words “other matter of indecent character” could not be interpreted to include objects comprehensible by hearing (phonographic recordings) rather than sight; an argument similar to the tangible/intangible one raised here, and held that obscene records fell within the scope of the criminal statute.

In reaching its decision, the Alpers Court found that the legislative history of Section 1462 did not support defendant’s sight/sound distinction. It was not persuaded that Congress’ amendment of Section 1462 to add motion picture films to the list of prohibited materials “evidenced an intent that obscene matter not specifically added was without the prohibition of the statute.” Id. Rather, the Court concluded that the amendment evidenced Congress’ preoccupation “with making doubly sure that motion-picture film was within the Act, and was concerned with nothing more or less.” Id. We are similarly unpersuaded by Defendants’ arguments that the absence of the words “including by computer” in Section 1465, despite Congress’ addition of those words in other legislation, is evidence of its intent not to criminalize conduct, such as Defendants’ that falls within the plain language and intent of Section 1465.

Furthermore, under similar facts, the U.S. Air Force Court of Criminal Appeals recently considered   1465’s plain language and its intended purpose. In United States v. Maxwell, 42 M.J. 568, 1995 WL 259269 (A.F. Ct. Crim. App. 1995), a defendant was charged with violating Section 1465 because he had transmitted obscene visual images electronically through the use of an on-line computer service. He argued that since the statute is silent concerning computer transmissions, such transmissions were not to be included within the terms “transporting obscene materials in interstate or foreign commerce.” The court observed that well-established principles of statutory construction require a court to look first to the statute’s plain language. Maxwell, 1995 WL 259269 at *10 (citing Rubin v. United States, 449 U.S. 424, 430 (1981)). Applying that principle, the Maxwell court concluded that the defendant’s conduct fell within the plain language of Section 1465. Specifically, the court held:

[t]he use of the terms “transports,” “distribution,” “picture,” “image” and “electrical transcription” leads us to the inescapable conclusion the statute is fully applicable to the activities engaged in by applicant. . . . It is clear Congress intended to stem the transportation of obscene material in interstate commerce regardless of the means used to effect that end.

Maxwell, 1995 WL 259269 at *10.

Likewise, we conclude that Defendants’ conduct here falls within the plain language of Section 1465.[6] Moreover, our interpretation of Section 1465 is consistent with Congress’ intent to legislate comprehensively the interstate distribution of obscene materials. Id.

B.

Defendants also challenge venue in the Western District of Tennessee for counts 2-7 of their indictments. They argue that even if venue was proper under count 1 (conspiracy) and counts 8-10 (videotapes sent via U.P.S.), counts 2-7 (GIF files) should have been severed and transferred to California because Defendants did not cause the GIF files to be transmitted to the Western District of Tennessee. Rather, Defendants assert, it was Dirmeyer, a government agent, who, without their knowledge, accessed and downloaded the GIF files and caused them to enter Tennessee. We disagree. To establish a Section 1465 violation, the Government must prove that a defendant knowingly used a facility or means of interstate commerce for the purpose of distributing obscene materials. Contrary to Defendants’ position, Section 1465 does not require the Government to prove that Defendants had specific knowledge of the destination of each transmittal at the time it occurred.

“Venue lies in any district in which the offense was committed,” and the Government is required to establish venue by a preponderance of the evidence. United States v. Beddow, 957 F.2d 1330, 1335 (6th Cir. 1992) (quoting United States v. Williams, 788 F.2d 1213, 1215 (6th Cir. 1986)). This court examines the propriety of venue by taking “‘into account a number of factors–the site of the defendant’s acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate fact finding . . .’” Id.

Section 1465 is an obscenity statute, and federal obscenity laws, by virtue of their inherent nexus to interstate and foreign commerce, generally involve acts in more than one jurisdiction or state. Furthermore, it is well-established that “there is no constitutional impediment to the government’s power to prosecute pornography dealers in any district into which the material is sent.” United States v. Bagnell, 679 F.2d 826, 830 (11th Cir. 1982), cert. denied, 460 U.S. 1047 (1983); United States v. Peraino, 645 F.2d 548, 551 (6th Cir. 1981). Thus, the question of venue has become one of legislative intent. Bagnell, 679 F.2d at 830.

The Bagnell court examined both    1462 and 1465 and found that each statute established a continuing offense within the venue provisions of 18 U.S.C.   3237(a) “that occur[s] in every judicial district which the material touches.” Id. at 830. This court likewise recognized that “venue for federal obscenity prosecutions lies ‘in any district from, through, or into which’ the allegedly obscene material moves.” Peraino, 645 F.2d at 551 (citing 18 U.S.C.   3237).

Substantial evidence introduced at trial demonstrated that the AABBS was set up so members located in other jurisdictions could access and order GIF files which would then be instantaneously transmitted in interstate commerce. Moreover, AABBS materials were distributed to an approved AABBS member known to reside in the Western District of Tennessee. Specifically, Defendant Robert Thomas knew of, approved, and had conversed with an AABBS member in that judicial district who had his permission to access and copy GIF files that ultimately ended up there. Some of these GIF files were clearly marked “Distribute Freely.” In light of the above, the effects of the Defendants’ criminal conduct reached the Western District of Tennessee, and that district was suitable for accurate fact-finding. Accordingly, we conclude venue was proper in that judicial district.

C.

Defendants further argue that their convictions under counts 1-7 of their indictments violate their First Amendment rights to freedom of speech. As the Supreme Court noted in Bose, when constitutional facts[7] are at issue, this court has a duty to conduct an independent review of the record “both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited.” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 505 (1984).

1. Defendants’ Right to Possess the GIF Files in their Home

No. 97-50018
D.C. No. CR-95-00556-TJH

OPINION Appeal from the United States District Court for the Central District of California
Terry J. Hatter, District Judge, Presiding
Argued and Submitted November 3, 1997–Pasadena, California
Filed November 21, 1997
Before: William C. Canby, Jr. and David R. Thompson, Circuit Judges, and Donald W. Molloy,* District Judge.
Opinion by Judge Molloy
COUNSEL
Richard D. Burda, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant.
David C. Scheper, and Benjamin Jones, Jr., Assistant United States Attorneys, Los Angeles, California, for the plaintiff-appellee.

OPINION

MOLLOY, District Judge:

I. Overview

Mark Stuart Hockings (“Hockings”) was charged with one count of possessing eight computer files containing visual depictions of child pornography, in violation of 18 U.S.C. Section 2252(a)(4)(B), and one count of transporting sixteen visual depictions of child pornography in interstate commerce, inviolation of 18 U.S.C. Section 2252(a)(1). After a bench trial he was found guilty on both counts. On appeal, he claims the computer GIF files from which pornographic images could be retrieved are not “visual depictions” as defined in the charging statute. Additionally, he argues the charging statute did not provide him with fair warning of the proscribed conduct. We disagree.

The construction or interpretation of a statute is reviewed de novo. United States v. DeLaCorte, 113 F.3d 154, 155 (9th Cir. 1997). Whether a statute is void for vagueness is also reviewed de novo. United States v. Woodley, 9 F.3d 774, 778 (9th Cir. 1993).

II. Discussion

A.
Subsections 2252(a)(1) and (4)(B) criminalize the knowing transportation in interstate commerce, “by any means including by computer or mails,” of “visual depictions” involving minors engaged in sexually explicit conduct, 18 U.S.C. Section 2252(a)(1) (emphasis added). It is also illegal to be in the knowing possession of three or more “matter[s] which contain any [such] visual depiction,” 18 U.S.C.Section 2252(a)(4)(B). When the offense happened, the applicable statute stated that “‘visual depiction’ includes undeveloped film and videotape.” 18 U.S.C. Section 2256(5) (Law. Co-op. 1991). It did not refer to information stored on disc. In 1996, the statutory definition was expanded to include “data stored on computer disk or by electronic means which is capable of conversion into a visual image.” 18 U.S.C.S. Section 2256(5) (Law. Co-op. 1991 & Supp. 1997).

When interpreting a statute, we “look first to the plain language of the statute, construing the provisions of the entire law, including its object and policy, to ascertain the intent of Congress.” Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996). If the statute is unclear, we look next to the legislative history. Id. at 830-31.

[1] Hockings argues that his conduct is not within the purview of the statute because the definition of “visual depiction” contained in the former version of section 2256(5), includes undeveloped film and videotape but not computer data. However, both subparts of section 2252 under which Hockings was charged prohibit the transportation by computer of visual depictions of minors engaging in sexually explicit conduct. It leads to an absurdity to find that Congress intended to outlaw the transportation of pornographic visual depictions of children by computer, yet conclude that Congress did not intend to include GIF files within the definition of visual depiction.

[2] The former definition of “visual depiction” is not limited to undeveloped film and videotape–it “includes” those items but is not drafted as an exhaustive list of all items that constitute a “visual depiction.” See 18 U.S.C.S. Section 2256(5) (1991). This view is supported by United States v. Smith, 795 F.2d 841 (9th Cir. 1986). Smith construed the pre-1986 version of the child pornography statute that contained no definition of “visual depiction.” Smith took photographs of three teenage girls in various stages of nudity and sent the film for developing. After developing the film, the photo company contacted U.S. postal inspectors. Smith was charged with violations of the federal child pornography statutes and convicted on all counts. Id. at 844-45.
On appeal, this court rejected Smith’s argument that “unprocessed, undeveloped film does not constitute a ‘visual depiction’ within the meaning of the statute.” Id. at 846. Accepting that “color film must undergo an elaborate developing process before any image can be perceived by the human eye,” id., the court concluded:
The exclusion of unprocessed film from the statute’s coverage would impede the child pornography laws by protecting a necessary intermediate step in the sexual exploitation of children. The interpretation urged by Smith would allow unrestricted interstate commerce in child pornography so long as the pornography was still in the form of undeveloped film. Such a loophole is inconsistent with congressional intent; the undeveloped state of the film does not eliminate the harm to the child victims in the film’s production or the incentive to produce created by the film’s trafficking. We therefore hold that the undeveloped film constitutes a “visual depiction”
. . . .
Id. at 846-47.

[3] The same rationale applies to GIF files in relation to the pre-1996 version of the statute under which Hockings was charged. GIF files were a means of storage and transportation of visual depictions of child pornography in this case. Although a software program was required to de-compress the GIF file, the contents of the GIF file could be viewed on a computer screen or printed in hard copy if so desired.

[4] The statute was amended in 1996 to specifically include computer data such as GIF files. (“[V]isual depiction includes . . . data stored on computer disk or by electronic means which is capable of conversion into a visual image”). 18 U.S.C.A. Section 2256 (West Supp. 1997). Hockings suggests the amendment lends support to his argument that the pre-1996 statute did not encompass GIF files. However, “Congress may amend a statute simply to clarify existing law, to correct a misinterpretation, or to overrule wrongly decided cases. Thus, an amendment to a statute does not necessarily indicate that the unamended statute means the opposite.” United States v. Hawkins, 30 F.3d 1077, 1082 (9th Cir. 1994). We conclude that computer GIF files are visual depictions within the meaning of the charging statute. The visual image transported in binary form starts and ends pornographically and that is what Congress seeks to prohibit.

B.

[5] We also reject Hockings’ attack on the statute as void for vagueness. The Supreme Court outlined the contours of the vagueness doctrine in United States v. Lanier, 137 L.Ed. 2d 432 (1997). First, an act cannot be so vague that “men of common intelligence must necessarily guess at its meaning and differ as to its application.” Id. at 442. Second, the rule of lenity must be applied to restrict criminal statutes to conduct clearly covered by those statutes. Id. Third, a court may interpret the statute to provide the “requisite level” of clarity, but any such interpretation must not be so “novel ” as to include conduct that “neither the statute or any prior judicial decision has fairly disclosed to be within its scope.” Id. at 442-43.
Hockings argues that the charging statute is constitutionally vague because it criminalizes “the transportation and possession of items [GIF files] that clearly are not visual depictions, on the grounds that they are visual depictions, goes beyond what a person of common intelligence would infer from reading the statute.” We disagree. The statute satisfies the Lanier standard.

[6] As noted above, GIF files are merely a means of storage and transportation of visual depictions. The statute proscribes the transportation of visual depictions of minors engaged in sexually explicit conduct by any means, including by computer. 18 U.S.C. Section 2252(a)(1),(4)(B). While holding otherwise, even if judicial gloss is required to bring GIF files within the compass of the statute, such an interpretation is not novel in view of the case law discussed above. See Smith supra; see also United States v. Thomas, 74 F.3d 701, 707 (6th Cir. 1996)(holding that GIF files fall within the obscenity statutes although not specifically proscribed herein because “the manner in which the images move[ ] does not affect their ability to be viewed on a computer screen in [a distant location] or their ability to be printed out in hard copy in that distant location”). Hence, Hockings had fair warning that the transportation of visual depictions by means of computer GIF files was in violation of the statute.
AFFIRMED.

v.

GEORGE ALLEN, Governor of the Commonwealth of Virginia,
Defendant.

Civil Action No. 97-701-A

ORDER

For the reasons stated in the accompanying Memorandum Opinion, the plaintiffs’ Motion for Summary Judgment is GRANTED and the defendant’s Motion for Summary Judgment is DENIED, and it is hereby DECLARED that Va. Code  2.1-804, et seq., entitled “Restrictions on State Employees Access to Information Infrastructure” violates the First and Fourteenth Amendments of the United States Constitution and is, therefore, invalid.

Because they are the prevailing parties, plaintiffs are entitled to recover their reasonable attorneys’ fees and costs pursuant to 42 U.S.C.  1988. Plaintiffs should submit their fee petition within eleven (11) days.

The Clerk is directed to forward copies of this Order to counsel of record.

Entered this 26th day of February, 1998.

Leonie M. Brinkema
United States District Judge

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA

Alexandria Division

MELVIN I. UROFSKY, et al.,
Plaintiffs,

v.

GEORGE ALLEN, Governor of the Commonwealth of Virginia,
Defendant.

Civil Action No. 97-701-A

MEMORANDUM OPINION

Before the Court are the parties’ cross-motions for summary judgment, in a case concerning the constitutionality of Va. Code 2.1-804 et seq., entitled “Restrictions on State Employee Access to Information Infrastructure” (“the Act”), which restricts the ability of state employees to access sexually explicit material on state-owned or leased computers.

I.

The plaintiffs are professors at various Virginia state colleges and universities, who allege that the Act unconstitutionally interferes with their research and teaching. For example, plaintiff Urofsky has been reluctant to assign students on-line research assignments on “indecency” law because of the Act; Smith’s website containing materials on gender roles and sexuality has been censored as a result of the Act; Meyers is concerned about his ability to access the Commonwealth’s own database of sexually explicit poetry to continue his studies on the “fleshy school” of Victorian poets; Heller has stopped using the Internet to continue her research on lesbian and gay studies; and Levin and Delaney are reluctant to use the Internet to continue their psychological research on human sexual experience. Plaintiffs contend that the Act, which became effective on July 1, 1996, violates their First Amendment right to free speech, and ask this Court to grant them summary judgment invalidating the Act. Defendant argues in response that the Act is a legitimate limitation of the speech of government employees, and asks the Court for summary judgment affirming the Act’s validity.

Section 2.1-805 of the Act provides that:

Except to the extent required in conjunction with a bona fide, agency-approved research project or other agency approved undertaking, no agency employee shall utilize agency-owned or agency-leased computer equipment to access, download, print or store any information infrastructure files or services having sexually explicit content. Such agency approvals shall be given in writing by agency heads, and any such approvals shall be available to the public under the provisions of the Virginia Freedom of Information Act.

Section 2.1-804 defines “sexually explicit”, content broadly to include:

(i) any description of or (ii) any picture, photograph, drawing, motion picture film, digital image or similar visual representation depicting sexual bestiality, a lewd exhibition of nudity, as nudity is defined in  18.2-390, sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in  18.2-390, coprophilia, urophilia, or fetishism.[1]

Section 18.2-390 of Virginia’s Criminal Code provides further definitions for the Act:

“Nudity” means a state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernibly turgid state.

“Sexual excitement” means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

“Sexual conduct” means actual or explicitly simulated acts of masturbation, homosexuality, sexual intercourse, or physical contact in an act of apparent sexual stimulation or gratification with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such be female, breast.

“Sadomasochistic abuse” means actual or explicitly simulated flagellation or torture by or upon a person who is nude or clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.

Although the Act restricts the ability of state employees to research, speak on, or receive information concerning sexually explicit topics via state computers, it does not completely prohibit such activities. Instead, the Act permits an employee to access sexually explicit material only after receiving written approval from the appropriate agency head who may grant such approval only if the proposed use is “required” in connection with a “bona fide” research project or undertaking. See Va. Code 2.1-805.

II.

The Applicable Standard of Review for Speech by Government Employees

When government employees speak on matters of public concern their speech is entitled to First Amendment protection under the standard set forth in Pickering v. Board of Education. See 391 U.S. 563 (1968); see also Connick v. Myers, 461 U.S. 138, 147-49 (1983) (speech of public employees on matters of merely private concern such as personal employment grievances is unprotected). Under the Pickering standard, the Court must balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568. This balancing test applies equally to speech within the workplace as it does to speech outside it. See Rankin v. McPherson, 483 U.S. 378, 383 (1987) (Pickering balancing applied to employee’s on-the-job statements).

The Act’s broad definition of “sexually explicit” content obviously includes obscene speech, that is, speech which lacks “serious literary, artistic, political, or scientific value;” that is “patently offensive;” and appeals primarily to a “prurient interest.” See Miller v. California, 413 U.S. 15, 24 (1973). Such speech does not enjoy First Amendment protection. However, the Act also applies to sexually explicit speech that is normally protected. For example, the Act’s broad definition of “sexually explicit” content would include research and debate on sexual themes in art, literature, history and the law, speech and research by medical and mental health professionals concerning sexual disease, sexual dysfunction, and sexually related mental disorders,[2] and the routine exchange of information among social workers on sexual assault and child abuse. Much of this information can be expected to be of benefit to the public. Indeed, the Supreme Court has expressly stated that sex is “one of the vital problems of human interest and public concern.” Roth v. United States, 354 U.S. 476, 487 (1957). As such, the speech of state employees on sexually explicit topics includes speech on matters of public concern entitled to First Amendment protection under the Pickering balancing test.

The Commonwealth argues that “state employee computer use is not protected speech under the First Amendment because the employees are acting in their capacities as government employees, not public citizens.” (Memo at 8). To support this position, the Commonwealth relies on DiMeglio v. Haines, 45 F.3d 790, 815 (4th Cir. 1995) and Boring v. Buncombe County Board of Education, No. 95-2593, 1998 WL 57559 (4th Cir. Feb. 13, 1998) (en banc). Both cases and Pickering focused on whether after-the-fact discipline of a public employee by a government employer violated the employee’s First Amendment free speech rights. They did not address, as we must here, a broad statute which prospectively addresses the speech of over 100,000 public employees. Indeed, as the DeMeglio court recognized, the relevant inquiry as to whether a public employee’s speech on a matter of public concern is protected “requires a ‘particularized balancing’ that is subtle, difficult to apply, and not yet well defined.” DeMeglio 45 F.3d at 806 (citing Connick, 461 U.S. at 150).

Because the Act before us establishes a prospective deterrent “to a broad category of expression by a massive number of potential speakers,” U.S. v. National Treasury Employees Union, 513 U.S. 454, 467 (1995) (hereinafter “NTEU”), the government’s justification for the restriction must be correspondingly higher. Id. at 468 (such a restriction “gives rise to far more serious concerns than could any single supervisory decision”). In addition, the Supreme Court has recognized a difference between “adverse action taken in response to actual speech,” and an upfront restriction like that found in the Act, which “chills potential speech before it happens.” Id. (citing Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931)). This feature of the Act also necessarily increases the government’s burden. Moreover, prospective restrictions on public employee speech impact heavily “on the public’s right to read and hear what the employees would otherwise have written and said.” Id. at 470. This lost public benefit is particularly great where a government employee speaks on matters of which she has specialized knowledge. See Sanjour v. EPA, 56 F.3d 85, 94 (D.C. Cir. 1995) (en banc) (“[A]s numerous courts and commentators have observed, government employees are in a position to offer the public unique insights into the workings of the government generally and their areas of specialization in particular.”); see also Waters v. Churchill, 511 U.S. 661, 674 (1994). Accordingly, the public’s interest in receiving the speech of government employees must also be weighed against the government’s interest in a challenged restriction. To address these concerns, the Supreme Court expanded the Pickering test and held in NTEU that when the government broadly restricts public employee speech, it has the burden of establishing that “the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government.” NTEU, 513 U.S. at 468 (quoting Pickering, 391 U.S. at 571).[3]

In the instant case, application of the Pickering/NTEU test is further complicated by the Act’s discrimination against sexually explicit content. The Supreme Court has made it clear on numerous occasions that “[r]egulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.” Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984); see also Turner Broadcasting v. F.C.C., 512 U.S. 622, 641-43 (1994) (“Turner I”). Underlying this principle is the recognition that “content-based burdens on speech raise[ ] the specter that the government may effectively drive certain ideas or viewpoints from the marketplace.” Simon & Schuster,. Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991). To justify such restrictions, the government must demonstrate a compelling interest, and the restrictions must be narrowly tailored to meet that objective. See Simon & Schuster, 502 U.S. at 118.[4] Despite this long line of well-established First Amendment precedent, defendant argues that the content-discriminatory nature of the Act does not increase its burden under the Pickering/NTEU balance. In support, defendant cites Board of County Comm’rs v. Umbehr, 116 S. Ct. 2342, 2348 (1996). Umbehr, like Pickering, involved a single adverse employment action taken by the government against an individual on account of his speech. It did not involve a content-based prior restraint affecting thousands of government employees. Consequently, the application of Umbehr to the present action is limited. Nevertheless, we recognize the general principle underlying Umbehr that the government may undertake actions as an employer that are forbidden to it as sovereign. See id. at 2349.[5] Accordingly, rather than requiring the government to satisfy strict scrutiny review, as would be appropriate were the government acting solely as sovereign, we instead treat the Act’s content discrimination as yet another factor to be considered in applying the Pickering/NTEU balancing test.

The Interest of State Employees and Potential Audiences

At stake is the ability of more than 101,000 public employees at all levels of state government to read, research, and discuss sexually explicit topics within their areas of expertise. This includes inquiry and debate by academics in the fields of art, literature, medicine, psychology, anthropology, and law, and the exchange of sexually explicit information and opinions by employees in Virginia’s Departments of Corrections, Social Services, Juvenile Justice, and Mental Health, and the Office of the Commonwealth’s Attorney General. Indeed, in the instant case, the Commonwealth’s own attorneys were required to obtain written agency approval to make use of the Internet material they have identified as “sexually explicit” before they could submit it with their pleadings. (Plaintiff’s Ex. 34).

Equally at stake is the right of the public to receive and benefit from the speech of state employees on matters within their areas of expertise. See NTEU, 513 U.S. at 470; Sanjour, 56 F.3d at 94. As the Supreme Court explains, “Our precedents have focused ‘not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.’” Board of Edu. v. Pico, 457 U.S. 853, 866 (1982) (quoting First Nat’l Bank of Boston v. Belloti, 435 U.S. 765, 783 (1978)). Contrary to defendant’s assertion, the interests of potential audiences are an essential part of the Pickering/NTEU balance. See NTEU, 513 U.S. at 468. Here, as in NTEU, the statute at issue impacts heavily “on the public’s right to read and hear what the employees would otherwise have written and said.” Id. at 470. As noted above, “public employees, by virtue of their expertise and experience, are often among the citizens who are the best informed … their opinions are thus especially valuable to the public.” Developments in the Law–Public Employment, 97 HARV. L. REV. 1611, 1768 (1984). Moreover, by targeting the use of computers, the Act necessarily restricts use of the Internet, arguably the most powerful tool for sharing information ever developed. See generally Reno v. ACLU, 117 S. Ct. 2329 (1997) (describing the uses and potential of the Internet, and noting with approval the observation of the district court that “[i]t is no exaggeration to conclude that the content of the Internet is as diverse as human thought”). In doing so, the Act increases the burden both on the research and speech of state employees and on the public’s ability to benefit from that research and speech. Given the public and employee interests described above, we agree that “[d]epriving … the general populace of government employees’ novel and valuable perspective … require[s] a serious and carefully considered justification.” Sanjour, 56 F.3d at 130.

The Commonwealth’s Asserted Interests in Workplace Efficiency and Avoiding Hostile Work Environment Claims

Under the Pickering/NTEU standard, the government must demonstrate not only that the harms it asserts are “real, not merely conjectural,” but also that the statute used to address them is a “reasonable response to the threat” which will alleviate the harms “in a direct and material way.” NTEU, 513 U.S. at 474-75 (quoting Turner I, 512 U.S. at 624). The Sanjour court has interpreted the “reasonable response” requirement to mean that “[i]n performing the Pickering balance, the courts must consider whether the challenged statute or regulation is tailored to address the harm that the government allegedly aims to protect.” Sanjour, 56 F.3d at 97.

The Commonwealth asserts that the Act’s restriction of sexually explicit speech is necessary in order to: (l) maintain operational efficiency in the workplace; and (2) prevent the creation of a sexually hostile work environment. As evidence that sexually explicit speech disrupts workplace functions, the Commonwealth describes five incidents in which employees used state computers to view or display sexual images unrelated to their work. See Def. Exs. 3-7. In some of these incidents, employees or students exposed to sexually explicit material were offended and complained to supervisors or departmental officials. For example, a Library of Virginia employee who observed a co-worker viewing “homosexual pornography” was offended, and complained to a supervisor. (Def. Ex. 3). In another example, a female student observed an image of a nude woman on a professor’s computer when she approached him with class-related questions; the student complained to her advisor and attempted to drop the class. (Def. Ex. 6). One student complained to a departmental official that a visiting professor was storing child pornography on a state computer; the professor was asked to resign immediately and did so. The university referred the matter to the appropriate prosecutor’s office. (Def. Ex. 7). In another incident, the Commonwealth had to remove sexually explicit material from several state computers. (Def. Ex. 5).

As evidence that sexually explicit speech is likely to result in a hostile work environment, defendant points to a website maintained by Paul Smith, one of the plaintiffs in this action. The website is maintained on a state computer at a state university, and contains, among other materials, graphic images of a nude woman in chains, a nude man with an erection, and a man and woman engaged in anal intercourse. See Def. Ex. 1, attachment 1. Smith contends that the images were intended as part of a discussion about censorship, pornography and capitalist control of the Internet. However, several students and at least one faculty member visited the site, were offended by the pictures they saw there, and complained to John O’Connor, vice-provost for information technology at the university. See Def. Ex. 1 at 118-132. Angry discussion concerning the images was “all up and down [the] hall” and had become a “big deal” by the end of the week. See P1. Ex. 1 at 137-38, 178-79. In response to these complaints, O’Connor initially blocked access to several images, but later restored some of them. See id. at 123-26, 170-73.

We are not unsympathetic with the government’s concern about the potential of such incidents to impair workplace efficiency. Employees viewing sexual images unrelated to their work are neglecting the duties they were hired to perform, causing a loss of productivity. Such images may also distract and offend co-workers. Finally, the Commonwealth must spend time and money dealing with complaints, disciplining employees, and removing frivolous materials from state computer equipment. Certainly, the government is entitled to guard the productivity of its employees against distraction. Likewise, the Commonwealth has a right, as well as a legal duty, to avoid the creation of a hostile work environment.

Ultimately, however, the strength of the government’s asserted interests must be evaluated in terms of the statute it has crafted to address them. In the instant case, we find that the Act is both fatally over inclusive and under inclusive; and that this “obvious lack of ‘fit’ between the government’s purported interest and the sweep of its restrictions” casts “serious doubt” on the government’s asserted need for the statute. See Sanjour, 56 F.3d at 95; see also Carey v. Brown, 447 U.S. 455, 465 (1980) (a statute’s over- and under-inclusiveness “undermine [the] claim that the prohibition … can be justified by reference to the State’s interest”). Moreover, the harms asserted by the Commonwealth appear to be adequately addressed by existing content-neutral enforcement mechanisms. This further undercuts the Commonwealth’s asserted justifications for the Act. See R.A.V., 505 U.S. at 395 (“The existence of adequate content-neutral alternatives thus ‘undercut[s] significantly’ any defense of such a statute.” (quoting Boos v. Barry, 485 U.S. 312, 329 (1988))). We discuss each of these findings in turn.

Under inclusiveness

Civil No. PJM 97-3463

OPINION

I.

Pro se Plaintiff Alan J. Truelove, for himself and as parent and next friend of Alison H. Truelove, his minor daughter, has filed a one-count Second Amended Complaint against four Defendants – Mensa International, Ltd., American Mensa Ltd., L-Soft International Inc., and CompuServe, Inc. Although framed in a single count, the Complaint actually appears to allege several distinct causes of action, viz, breach of contract against the two Mensa organizations; negligent permission to use its equipment and computers against CompuServe; negligent permission to use its computer software against L-Soft; and defamation and intentional infliction of emotional distress against all Defendants.(1)

Defendant L-Soft has filed a Motion to Dismiss, which Plaintiffs oppose. The Court has determined to GRANT the Motion.

II.

The relevant facts may be stated succinctly. Plaintiffs assert that they are members of the Mensa organizations (2) and that they have been denied certain benefits of membership, including access to chat rooms on the Internet reserved for members of Mensa. They also say that they have been defamed by the Mensa organizations, particularly on Mensa message boards on the Internet.

Plaintiffs allege no contract of their own or any breach of same as far as L-Soft is concerned. What they say is that the Mensa defendants have a contract with L-Soft which “provides a physical Computer platform host and relevant Computer Software.” L-Soft maintains an Internet News group and List for Mensa members on which the members may post messages and send and receive e-mails without prior screening. According to Plaintiff Alan Truelove, he was wrongly terminated from membership on the L-Soft Mensa list and subsequently libelled on the list, events which took place on the Computer platform owned by L-Soft and located on L-Soft’s premises in Laurel, Maryland. Plaintiffs’ claim against L-Soft is that, either negligently or willfully, it permitted the Mensa Defendants to remove Truelove from use of the list and allowed the libelous statements to appear on it.

Plaintiffs pray injunctive relief against L-Soft -specifically that it preserve Plaintiffs’ right to see and respond to all Mensa messages on the Internet and that it respond in damages for injury to Plaintiffs’ reputation and loss of membership privileges.

III.

L-Soft has moved to dismiss on several grounds, only one of which need be considered, viz, that Plaintiffs’ claim is barred by § 230 of the Communications Decency Act, 47 U.S.C. § 230. The Court finds this argument well taken.

Section 230 of the CDA states that “[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c) (1).(3) Accordingly, any lawsuit attempting to hold “service providers liable for information originating with a third party user of the service” is barred. Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 118 S.Ct. 2341 (1998) (“By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service”).

The Fourth Circuit has also held that § 230 precludes courts from entertaining lawsuits that seek to hold an interactive computer service liable for failure to exercise traditional editorial functions of a publisher such as deciding “whether to publish, withdraw, postpone or alter content.” Id. When enacting § 230, Congress made a policy choice not to attempt to deter harmful or defamatory online speech by imposing tort liability on interactive computer services. Id. at 330-31. In essence “[Congress] made the legislative judgment to effectively immunize providers of interactive computer services from civil liability in tort with respect to material disseminated by them but created by others.” Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998). Section 230, on the other hand, in no way restricts the accountability of the party who posted the defamatory messages in the first place.

IV.

Plaintiffs concede that L-Soft is an “interactive computer service” under § 230. It provides a list mailing service through its computer hardware and software, enabling many people to access the Internet. Information provided by others passes through

L-Soft’s equipment and software without any intervention by L-Soft or its personnel. L-Soft exerts no control over material posted through its services, nor does it determine who may subscribe to the lists provided by their equipment. In the instant case, for example, it was the Mensa organizations that controlled posting and subscribing to the L-Soft List.

That, quite simply, is the end of the matter. As an “interactive computer service” under § 230, L-Soft is immune from precisely the type of liability Plaintiffs seek to impose here. Plaintiffs’ claims against L-Soft, however they may be styled, must fail.

V.

For the foregoing reasons, the Court will GRANT Defendant L-Soft’s Motion to Dismiss. L-Soft’s request for an award of costs and fees in defending this action are DENIED.

A separate Order will be entered implementing this decision.
__________________________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
February 10, 1999
__________________________________________________________________________________
1 The preferred practice in pleading is that each cause of action be set out in a separate count. See Fed. R. Civ. P. 10(b), ElA Am. Jur. 2d, Pleading, §§ll6-119. The Court assumes that in the course of these proceedings Defendants will file appropriate dispositive motions to test the viability of these various claims.
2 “Mensa” is the collective name for international and national membership organizations whose members have intelligence quotients in the top 2% of the population.
3 The statute defines “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access by the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. §230(e) (2). An “information content provider” is defined in the statute as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Id. § 230(e) (3). In the instant case, the unidentified third party Mensa members who posted the allegedly defamatory material fit the definition of an “information content provider.”

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
ALAN J. TRUELOVE, Plaintiff
v.
MENSA INTERNATIONAL, LTD., et al., Defendant
Civil No. PJM 97-3463
FINAL ORDER AS TO DEFENDANT L-SOFT ONLY

Upon consideration of Defendant L-Soft’s Motion to Dismiss and Plaintiffs’ Opposition thereto, it is for the reasons set forth in the accompanying Opinion this 10th day of February, 1999

ORDERED that Defendant L-Soft’s Motion to Dismiss is hereby GRANTED; and it is further

ORDERED that said Defendant’s Motion for Attorney’s Fees is hereby DENIED; and it is further

ORDERED that final judgment is hereby ENTERED in favor of Defendant L-Soft and against Plaintiffs.
__________________________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE

No. 96–511
On appeal from the United States District Court for the Eastern District of Pennsylvania
[June 26, 1997]

Justice Stevens delivered the opinion of the Court.
At issue is the constitutionality of two statutory provisions enacted to protect minors from “indecent” and “patently offensive” communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges “the freedom of speech” protected by the First Amendment.[1]

I

The District Court made extensive findings of fact, most of which were based on a detailed stipulation prepared by the parties. See 929 F. Supp. 824, 830–849 (ED Pa. 1996).[2] The findings describe the character and the dimensions of the Internet, the availability of sexually explicit material in that medium, and the problems confronting age verification for recipients of Internet communications. Because those findings provide the underpinnings for the legal issues, we begin with a summary of the undisputed facts.

The Internet

The Internet is an international network of interconnected computers. It is the outgrowth of what began in 1969 as a military program called “ARPANET,”[3] which was designed to enable computers operated by the military, defense contractors, and universities conducting defense-related research to communicate with one another by redundant channels even if some portions of the network were damaged in a war. While the ARPANET no longer exists, it provided an example for the development of a number of civilian networks that, eventually linking with each other, now enable tens of millions of people to communicate with one another and to access vast amounts of information from around the world. The Internet is “a unique and wholly new medium of worldwide human communication.”[4]

The Internet has experienced “extraordinary growth.”[5] The number of “host” computers—those that store information and relay communications—increased from about 300 in 1981 to approximately 9,400,000 by the time of the trial in 1996. Roughly 60% of these hosts are located in the United States. About 40 million people used the Internet at the time of trial, a number that is expected to mushroom to 200 million by 1999.

Individuals can obtain access to the Internet from many different sources, generally hosts themselves or entities with a host affiliation. Most colleges and universities provide access for their students and faculty; many corporations provide their employees with access through an office network; many communities and local libraries provide free access; and an increasing number of storefront “computer coffee shops” provide access for a small hourly fee. Several major national “online services” such as America Online, CompuServe, the Microsoft Network, and Prodigy offer access to their own extensive proprietary networks as well as a link to the much larger resources of the Internet. These commercial online services had almost 12 million individual subscribers at the time of trial.

Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods. These methods are constantly evolving and difficult to categorize precisely. But, as presently constituted, those most relevant to this case are electronic mail (“e-mail”), automatic mailing list services (“mail exploders,” sometimes referred to as “listservs”), “newsgroups,” “chat rooms,” and the “World Wide Web.” All of these methods can be used to transmit text; most can transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique medium—known to its users as “cyberspace”—located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.

E-mail enables an individual to send an electronic message—generally akin to a note or letter—to another individual or to a group of addressees. The message is generally stored electronically, sometimes waiting for the recipient to check her “mailbox” and sometimes making its receipt known through some type of prompt. A mail exploder is a sort of e-mail group. Subscribers can send messages to a common e-mail address, which then forwards the message to the group’s other subscribers. Newsgroups also serve groups of regular participants, but these postings may be read by others as well. There are thousands of such groups, each serving to foster an exchange of information or opinion on a particular topic running the gamut from, say, the music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls. About 100,000 new messages are posted every day. In most newsgroups, postings are automatically purged at regular intervals. In addition to posting a message that can be read later, two or more individuals wishing to communicate more immediately can enter a chat room to engage in real-time dialogue—in other words, by typing messages to one another that appear almost immediately on the others’ computer screens. The District Court found that at any given time “tens of thousands of users are engaging in conversations on a huge range of subjects.”[6] It is “no exaggeration to conclude that the content on the Internet is as diverse as human thought.”[7]

The best known category of communication over the Internet is the World Wide Web, which allows users to search for and retrieve information stored in remote computers, as well as, in some cases, to communicate back to designated sites. In concrete terms, the Web consists of a vast number of documents stored in different computers all over the world. Some of these documents are simply files containing information. However, more elaborate documents, commonly known as Web “pages,” are also prevalent. Each has its own address—”rather like a telephone number.”[8] Web pages frequently contain information and sometimes allow the viewer to communicate with the page’s (or “site’s”) author. They generally also contain “links” to other documents created by that site’s author or to other (generally) related sites. Typically, the links are either blue or underlined text—sometimes images.

Navigating the Web is relatively straightforward. A user may either type the address of a known page or enter one or more keywords into a commercial “search engine” in an effort to locate sites on a subject of interest. A particular Web page may contain the information sought by the “surfer,” or, through its links, it may be an avenue to other documents located anywhere on the Internet. Users generally explore a given Web page, or move to another, by clicking a computer “mouse” on one of the page’s icons or links. Access to most Web pages is freely available, but some allow access only to those who have purchased the right from a commercial provider. The Web is thus comparable, from the readers’ viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.

From the publishers’ point of view, it constitutes a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can “publish” information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals.[9] Publishers may either make their material available to the entire pool of Internet users, or confine access to a selected group, such as those willing to pay for the privilege. “No single organization controls any membership in the Web, nor is there any centralized point from which individual Web sites or services can be blocked from the Web.”[10]

Sexually Explicit Material

Sexually explicit material on the Internet includes text, pictures, and chat and “extends from the modestly titillating to the hardest-core.”[11] These files are created, named, and posted in the same manner as material that is not sexually explicit, and may be accessed either deliberately or unintentionally during the course of an imprecise search. “Once a provider posts its content on the Internet, it cannot prevent that content from entering any community.”[12] Thus, for example, “when the UCR/California Museum of Photography posts to its Web site nudes by Edward Weston and Robert Mapplethorpe to announce that its new exhibit will travel to Baltimore and New York City, those images are available not only in Los Angeles, Baltimore, and New York City, but also in Cincinnati, Mobile, or Beijing—wherever Internet users live. Similarly, the safer sex instructions that Critical Path posts to its Web site, written in street language so that the teenage receiver can understand them, are available not just in Philadelphia, but also in Provo and Prague.”[13]

Some of the communications over the Internet that originate in foreign countries are also sexually explicit.[14]

Though such material is widely available, users seldom encounter such content accidentally. “A document’s title or a description of the document will usually appear before the document itself . . . and in many cases the user will receive detailed information about a site’s content before he or she need take the step to access the document. Almost all sexually explicit images are preceded by warnings as to the content.”[15] For that reason, the “odds are slim” that a user would enter a sexually explicit site by accident.[16] Unlike communications received by radio or television, “the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended.”[17]

Systems have been developed to help parents control the material that may be available on a home computer with Internet access. A system may either limit a computer’s access to an approved list of sources that have been identified as containing no adult material, it may block designated inappropriate sites, or it may attempt to block messages containing identifiable objectionable features. “Although parental control software currently can screen for certain suggestive words or for known sexually explicit sites, it cannot now screen for sexually explicit images.”[18] Nevertheless, the evidence indicates that “a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be available.”[19]

On appeal from the United States District Court for the Eastern District of Pennsylvania
No. 96–511.
Argued March 19, 1997—
Decided June 26, 1997

Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful material on the Internet, an international network of interconnected computers that enables millions of people to communicate with one another in “cyberspace” and to access vast amounts of information from around the world. Title 47 U. S. C. A. §223(a)(1)(B)(ii) (Supp. 1997) criminalizes the “knowing” transmission of “obscene or indecent” messages to any recipient under 18 years of age. Section 223(d) prohibits the “knowin[g]” sending or displaying to a person under 18 of any message “that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” Affirmative defenses are provided for those who take “good faith, . . . effective . . . actions” to restrict access by minors to the prohibited communications, §223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, §223(e)(5)(B). A number of plaintiffs filed suit challenging the constitutionality of §§223(a)(1) and 223(d). After making extensive findings of fact, a three-judge District Court convened pursuant to the Act entered a preliminary injunction against enforcement of both challenged provisions. The court’s judgment enjoins the Government from enforcing §223(a)(1)(B)’s prohibitions insofar as they relate to “indecent” communications, but expressly preserves the Government’s right to investigate and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforcement of §223(d) is unqualified because that section contains no separate reference to obscenity or child pornography. The Government appealed to this Court under the Act’s special review provisions, arguing that the District Court erred in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague.

Held: The CDA’s “indecent transmission” and “patently offensive display” provisions abridge “the freedom of speech” protected by the First Amendment. Pp. 17–40.

(a) Although the CDA’s vagueness is relevant to the First Amendment overbreadth inquiry, the judgment should be affirmed without reaching the Fifth Amendment issue. P. 17.

(b) A close look at the precedents relied on by the Government—Ginsberg v. New York, 390 U. S. 629; FCC v. Pacifica Foundation, 438 U. S. 726; and Renton v. Playtime Theatres, Inc., 475 U. S. 41—raises, rather than relieves, doubts about the CDA’s constitutionality. The CDA differs from the various laws and orders upheld in those cases in many ways, including that it does not allow parents to consent to their children’s use of restricted materials; is not limited to commercial transactions; fails to provide any definition of “indecent” and omits any requirement that “patently offensive” material lack socially redeeming value; neither limits its broad categorical prohibitions to particular times nor bases them on an evaluation by an agency familiar with the medium’s unique characteristics; is punitive; applies to a medium that, unlike radio, receives full First Amendment protection; and cannot be properly analyzed as a form of time, place, and manner regulation because it is a content-based blanket restriction on speech. These precedents, then, do not require the Court to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions. Pp. 17–21.

(c) The special factors recognized in some of the Court’s cases as justifying regulation of the broadcast media—the history of extensive government regulation of broadcasting, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 399–400; the scarcity of available frequencies at its inception, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637–638; and its “invasive” nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128—are not present in cyberspace. Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet. Pp. 22–24.

(d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for First Amendment purposes. For instance, its use of the undefined terms “indecent” and “patently offensive” will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean. The vagueness of such a content-based regulation, see, e.g., Gentile v. State Bar of Nev., 501 U. S. 1030, coupled with its increased deterrent effect as a criminal statute, see, e.g., Dombrowski v. Pfister, 380 U. S. 479, raise special First Amendment concerns because of its obvious chilling effect on free speech. Contrary to the Government’s argument, the CDA is not saved from vagueness by the fact that its “patently offensive” standard repeats the second part of the three-prong obscenity test set forth in Miller v. California, 413 U. S. 15, 24. The second Miller prong reduces the inherent vagueness of its own “patently offensive” term by requiring that the proscribed material be “specifically defined by the applicable state law.” In addition, the CDA applies only to “sexual conduct,” whereas, the CDA prohibition extends also to “excretory activities” and “organs” of both a sexual and excretory nature. Each of Miller’s other two prongs also critically limits the uncertain sweep of the obscenity definition. Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing alone, is not vague. The CDA’s vagueness undermines the likelihood that it has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. Pp. 24–28.

(e) The CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. Although the Government has an interest in protecting children from potentially harmful materials, see, e.g., Ginsberg, 390 U. S., at 639, the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive, see, e.g., Sable, supra, at 126. Its breadth is wholly unprecedented. The CDA’s burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the Act’s legitimate purposes. See, e.g., Sable, 492 U. S., at 126. The Government has not proved otherwise. On the other hand, the District Court found that currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing material which the parents believe is inappropriate will soon be widely available. Moreover, the arguments in this Court referred to possible alternatives such as requiring that indecent material be “tagged” to facilitate parental control, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet differently than others. Particularly in the light of the absence of any detailed congressional findings, or even hearings addressing the CDA’s special problems, the Court is persuaded that the CDA is not narrowly tailored. Pp. 28–33.

(f) The Government’s three additional arguments for sustaining the CDA’s affirmative prohibitions are rejected. First, the contention that the Act is constitutional because it leaves open ample “alternative channels” of communication is unpersuasive because the CDA regulates speech on the basis of its content, so that a “time, place, and manner” analysis is inapplicable. See, e.g., Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530, 536. Second, the assertion that the CDA’s “knowledge” and “specific person” requirements significantly restrict its permissible application to communications to persons the sender knows to be under 18 is untenable, given that most Internet forums are open to all comers and that even the strongest reading of the “specific person” requirement would confer broad powers of censorship, in the form of a “heckler’s veto,” upon any opponent of indecent speech. Finally, there is no textual support for the submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA’s prohibitions. Pp. 33–35.

(g) The §223(e)(5) defenses do not constitute the sort of “narrow tailoring” that would save the CDA. The Government’s argument that transmitters may take protective “good faith actio[n]” by “tagging” their indecent communications in a way that would indicate their contents, thus permitting recipients to block their reception with appropriate software, is illusory, given the requirement that such action be “effective”: The proposed screening software does not currently exist, but, even if it did, there would be no way of knowing whether a potential recipient would actually block the encoded material. The Government also failed to prove that §223(b)(5)’s verification defense would significantly reduce the CDA’s heavy burden on adult speech. Although such verification is actually being used by some commercial providers of sexually explicit material, the District Court’s findings indicate that it is not economically feasible for most noncommercial speakers. Pp. 35–37.

(h) The Government’s argument that this Court should preserve the CDA’s constitutionality by honoring its severability clause, §608, and by construing nonseverable terms narrowly, is acceptable in only one respect. Because obscene speech may be banned totally, see Miller, supra, at 18, and §223(a)’s restriction of “obscene” material enjoys a textual manifestation separate from that for “indecent” material, the Court can sever the term “or indecent” from the statute, leaving the rest of §223(a) standing. Pp. 37–39.

(i) The Government’s argument that its “significant” interest in fostering the Internet’s growth provides an independent basis for upholding the CDA’s constitutionality is singularly unpersuasive. The dramatic expansion of this new forum contradicts the factual basis underlying this contention: that the unregulated availability of “indecent” and “patently offensive” material is driving people away from the Internet. P. 40.

929 F. Supp. 824, affirmed.

Stevens, J., delivered the opinion of the Court, in which Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., joined.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

Filed January 28, 1997
No. CIV-96-657-A

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter comes before the Court on Plaintiff’s complaint for injunctive and declaratory relief. Plaintiff is a professor at the University of Okahoma. Defendant is the President of the University of Oklahoma (OU). Plaintiff alleges that Defendant has violated his rights of free speech guaranteed by the First Amendment. Trial was held on January 17, 1997. On that date, the Court took the matter under advisement and now makes the following findings and conclusions.

Sometime prior to March 29, 1996, President Boren was visited by Representative Peary of the Oklahoma House of Representatives. Representative Peary brought to President Boren’s attention that material which he considered clearly obscene was available in news groups that were carried on OU’s news server. He raised concerns that OU might be violating state law by distributing obscene material. Oklahoma law makes it a felony to “distribute … any obscene or indecent writing, paper, book, picture, photograph, motion picture, figure, form or any description of any type of obscene material.” 21 O.S. 1021. It was suggested that OU was acting as a distributor by allowing obscene material to be downloaded via the news server owned and operated by OU. On March 29, 1996, President Boren, through his staff, blocked a number of news groups from being accessed through the OU news server. News groups are interactive “places” on the Internet into which anyone with access, anywhere in the world, may place graphic or text messages. These messages may then be read, looked at or added to, by anyone else whith access. Prior to March 29, 1996, users of the OU news server had unlimited access to all news groups available on the Internet. After March 29, 1996, users of the OU news server no longer had any access to the blocked groups through that server, although computer-savvy users could get to the same news groups through other, perhaps less convenient, routings.

President Boren resolved to block certain groups because he believed that they arguably contained obscene material the dissemination of which would violation state law. The violation [sic] could result in institutional and personal criminal penalties, and perhaps forfeiture of the OU computers. It is unclear from testimony at trial how the blocked groups were chosen. It is clear that there was no systematic examination of the groups before they were blocked, and that some groups that did not contain obscene material were blocked.

On the same day that the groups were blocked, the University undertook to devise a new policy that would attempt to walk the narrow line that OU officials perceived, a line between possible violations of state law and obligations to observe the First Amendment. In the nature of academic communities, this change in policy required the assembly of a task force and the participation of several committees, the faculty senate, and the Board of Regents. The process was necessarily slow. Sometime in the first week of January, 1997, shortly before trial, OU put its new policy in place.

PLAINTIFF’S CLAIM

Plaintiff seeks a declaration that his constitutional rights were violated and an injunction that would require OU to return to its former policy of allowing access to all news groups via an unrestricted news server. In order to merit an injunction, a plaintiff must demonstrate that he will be irreparably harmed if the injunction is not granted. See Country Kids ‘N City Slicks Inc. v. Sheen, 77 F.3d 1280 (10th Cir. 1996).

The Plaintiff, representing himself, rested his case without demonstrating an essential element. Plaintiff called as witnesses President Boren and the Director of Computing Services at OU, but he did not testify himself. He did not present any evidence at trial that he was harmed by the actions of Plaintiff or that he will suffer any harm if no injunction is granted. There was no specific, substantial evidence at trial that Plaintiff was effected by the blocking. Indeed, there was no evidence that any person ever attempted to reach the news groups that were blocked during the period that they were blocked. Material that was discussed by Plaintiff in his argument is not evidence. Only testimony under oath or exhibits entered into evidence may be considered as evidence by the Court. Plaintiff has failed to establish facts that would merit an injunction.

Similarly, Plaintiff has not made out a claim for declaratory relief. He has not shown that Defendant’s actions affected him personally. “In the trial court, of course, a party seeking declaratory judgment has the burden of establishing the existence of an actual case or controversy.” Cardinal Chemical Company v. Morton International, Inc., 508 U.S. 83, 95 (1993). Plaintiff has failed to meet that burden. Without reaching any conclusions about the actions of the defendant, the Court determines that Plaintiff has not shown that his constitutional rights were violated.

THE NEW POLICY

The new policy for access to news servers at OU meets constitutional standards. Under the new policy, put in place by OU in January of 1997, OU maintains two news servers. The “A” server allows access to only those news groups approved by OU, or rather, those groups that have not been disapproved. The “B” server allows access to all news servers, including those previously blocked. Use of the “B” server is restricted; to access the “B” server, a user must be over eighteen years of age, and must “click” on a box that denotes acceptance of specific terms governing the use of the “B” server. According to the terms of use, the “B” server may only be used for academic and research purposes.

The result of this policy is to allow recreational use of Internet services on the “A” server, but to restrict the use of certain news groups to academic and research purposes. A university is by its nature dedicated to research and academic purposes. The limitation of OU Internet services is to research and academic purposes on the “B” server is not an [sic] violation of the First Amendment, in that those purposes are the very ones for which the system was purchased.

The OU computer and Internet services do not constitute a public forum. There was no evidence at trial that the facilities have ever been open to the general public or used for public communication. “[T]he state, no less than a private owner of property, has the right to preserve the property under its control for the use to which it is lawfully dedicated. In this case, the OU computer and Internet services are lawfully dedicated to academic and research uses. Within these uses, access by an adult is plenary.

Whatever the constitutional state of affairs may have been before the new policy was enacted, the current situation meets constitutional requirements. Thus, by enacting the new policy, OU has effectively mocked Plaintiff’s claim.

ALTERNATIVE ROUTES

OU makes a second argument for mootness. Evidence at trial showed that during the period when certain news groups were blocked on the OU news server, those news groups could still be reached using OU computers, via the Internet or the World Wide Web. The Court is puzzled by this argument. According to the testimony of President Boren, news groups were blocked from the OU news server because of concerns that OU arguably could be regarded as “distributing” obscene material found in some of those news groups, through that news server, in violation of state law. Yet OU argues that the same obscene material could have been reached at any time in other ways, using OU computers.

Neither argument at trial nor the briefs give an indication of whether OU is liable to state prosecution when users reach obscene material through the alternative route on the Internet or Web using OU computers. However, the Court agrees that the fact of alternative routes to reach the blocked news groups does make Plaintiff’s claim moot.

CAPABLE OF REPETITION, YET EVADING REVIEW

Courts will consider issues that are moot, but “capable of repetition, yet evading review.” Norman v. Reed, 502 U.S. 279, 288 (1992); Moore v. Oglivie, 394 U.S. 814, 816 (1969). Plaintiff argueds that his case is capable of repetition. He argues that OU could block all Internet access and thus block the alternative routes to news groups. There is no indication that this will occur. The new policy put in place by OU does not provide for further blocking of access. Federal courts may not “give opinions upon moot questions or abstract propositions.” Calderon v. Moore, 116 S.Ct. 2066, 2067 (1996); Mills. v. Green, 159 U.S. 651, 653 (1895). Until OU takes action to block Plaintiff’s Internet access, there is no case or controversy for the Court to consider.

Plaintiff also argues that, theoretically, every server in the world could choose to block a particular news group and then that group could not be reached via the Internet or the Web. This is theoretically true, but so impossibly remote that the Court will not consider the argument.

CONCLUSION

The Court finds that Plaintiff’s constitutional rights were not violated and that he is not entitled to injunctive relief.

Judgment is entered for the Defendant.

WAYNE E. ALLEY
United States District Judge
Filed
January 28, 1997

JUDGMENT

Pursuant to the Findings of Fact and Conclusions of Law issued January 28, 1997, judgment is entered in favor of defendant, David Boren, President of the University of Oklahoma, and against the plaintiff, Bill Loving.

WAYNE E. ALLEY
United States District Judge

C.A. NO. 96-2486
AMERICAN ONLINE, INC. v. CYBER PROMOTIONS, INC.
C.A. NO. 96-5213

ORDER

The motion of American Online, Inc. for partial summary judgment on First Amendment issues is GRANTED in part and DENIED in part.

The Court declares that Cyber Promotions, Inc. does not have a right under the First Amendment to the United States Constitution or under the Constitutions of Pennsylvania and Virginia to send unsolicited e-mail advertisements over the Internet to members of American Online, Inc. and, as a result, American Online, Inc. may block any attempts by Cyber Promotions, Inc. to do so.

Cyber Promotions, Inc. shall, within ten days of the date of this Order, submit to the Court a list of the theories other than the First Amendment which it believes entitles it to send unsolicited e-mail to members of American Online, Inc.

Either party may request that we issue an Order certifying our decision for an immediate interlocutory appeal to the United States Court of Appeals for the Third Circuit.

IT IS SO ORDERED.

FOOTNOTES

FN1. In past submissions, Cyber has stated that AOL’s “e-mail bombs” occurred when AOL gathered all unsolicited e-mail sent by Cyber to undeliverable AOL addresses, altered the return path of such e-mail, and then sent the altered e-mail in a bulk transmission to Cyber’s ISPs in order to disable the ISPs.

FN2. Indeed, our Court of Appeals has observed that the exclusive public function test itself “rarely could be satisfied.” Mark, 51 F.3d at 1142. “Thus, in Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), the Court held that a private utility company, extensively regulated by the state, and apparently holding at least a partial monopoly in its territory, did not act under color of state law, in part because the state where the utility was engaged in business had ‘rejected the contention that the furnishing of utility services is either a state function or a municipal duty.’ (citation omitted). Similarly, in Rendell-Baker v. Kohn, 457 U.S. 830 (1982), the Court held that a private entity engaged in the education of maladjusted high school students did not perform an exclusively public function because ‘[the state's] legislative policy choice [to fund the public school] in no way makes these services the exclusive province of the State.’ (citation omitted); see also Black v. Indiana Area Sch. Dist., 985 F.2d 707, 710-11 (3d Cir. 1993) (private contractor providing state school bus program at state expense not performing exclusive state function).” Mark, id.

FN3. Cyber contends it is entitled to the protection of the Pennsylvania Constitution because Cyber’s e-mail originates from Pennsylvania and that it is entitled to the protection of the Virginia Constitution because AOL’s blocking actions occur in Virginia.

FN4. Pa.Cons.Stat.Ann. tit. 18 Section 3503(c)(2) provides:
It is a defense to prosecution under this section that: the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining on the premises.

Defendants.
Case No. C2-96-1070
February 3, 1997

MEMORANDUM OPINION AND ORDER

JUDGE GRAHAM:

This case presents novel issues regarding the commercial use of the Internet, specifically the right of an online computer service to prevent a commercial enterprise from sending unsolicited electronic mail advertising to its subscribers.

Plaintiff CompuServe Incorporated (“CompuServe”) is one of the major national commercial online computer services. It operates a computer communication service through a proprietary nationwide computer network. In addition to allowing access to the extensive content available within its own proprietary network, CompuServe also provides its subscribers with a link to the much larger resources of the Internet. This allows its subscribers to send and receive electronic messages, known as “e-mail,” by the Internet. Defendants Cyber Promotions, Inc. and its president Sanford Wallace are in the business of sending unsolicited e-mail advertisements on behalf of themselves and their clients to hundreds of thousands of Internet users, many of whom are CompuServe subscribers. CompuServe has notified defendants that they are prohibited from using its computer equipment to

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process and store the unsolicited e-mail and has requested that they terminate the practice. Instead, defendants have sent an increasing volume of e-mail solicitations to CompuServe subscribers. CompuServe has attempted to employ technological means to block the flow of defendants’ e-mail transmissions to its computer equipment, but to no avail.

This matter is before the Court on the application of CompuServe for a preliminary injunction which would extend the duration of the temporary restraining order issued by this Court on October 24, 1996 and which would in addition prevent defendant from sending unsolicited advertisements to CompuServe subscribers.

For the reasons which follow, this Court holds that where defendants engaged in a course of conduct of transmitting a substantial volume of electronic data in the form of unsolicited e-mail to plaintiff’s proprietary computer equipment, where defendants continued such practice after repeated demands to cease and desist, and where defendants deliberately evaded plaintiff’s affirmative efforts to protect its computer equipment from such use, plaintiff has a viable claim for trespass to personal property and is entitled to injunctive relief to protect its property.

I.

The Court will begin its analysis of the issues by acknowledging, for the purpose of providing a background, certain findings of fact recently made by another district court in a case involving the Internet:

1. The Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks. . . .

2. Some networks are “closed” networks, not linked to other computers or networks. Many networks, however, are connected to other networks, which are in turn connected to other networks in a manner which permits each computer in any network to communicate

PAGE 3

with computers on any other network in the system. This global Web of linked networks and computers is referred to as the Internet.

3. The nature of the Internet is such that it is very difficult, if not impossible, to determine its size at a given moment. It in indisputable, however, that the Internet has experienced extraordinary growth in recent years. . . . In all, reasonable estimates are that as many as 40 million people around the world can and do access the enormously flexible communication Internet medium. That figure is expected to grow to 200 million Internet users by the year 1999.

4. Some of the computers and computer networks that make up the network are owned by governmental and public institutions, some are owned by non-profit organizations, and some are privately owned. The resulting whole is a decentralized, global medium of communications–or “cyberspace”–that links people, institutions, corporations, and governments around the world. . . .
. . . .
11. No single entity-academic, corporate, governmental, or non-profit administers the Internet. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications and information with other computers (which in turn exchange communications and information with still other computers). There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet.

American Civil Liberties Union v. Reno, 929 F. Supp. 824, 830-832 (E.D. Pa. 1996). In 1994, one commentator noted that “advertisements on the current Internet computer network are not common because of the network’s not-for-profit origins.” Trotter Hardy, The Proper Legal Regime for “Cyberspace”, 55 U. Pitt. L. Rev. 993, 1027 (1994). In 1997, that statement is no longer true.

Internet users often pay a fee for Internet access. However there is no per-message charge to send electronic messages over the Internet and such messages usually reach their destination within minutes. Thus electronic mail provides an opportunity to reach a wide audience quickly and

PAGE 4

at almost no cost to the sender. It is not surprising therefore that some companies, like defendant Cyber Promotions, Inc., have begun using the Internet to distribute advertisements by sending the same unsolicited commercial message to hundreds of thousands of Internet users at once. Defendants refer to this as “bulk e-mail,” while plaintiff refers to it as “junk e-mail.” In the vernacular of the Internet, unsolicited e-mail advertising is sometimes referred to pejoratively as “spam.”[1]

CompuServe subscribers use CompuServe’s domain name “CompuServe.com” together with their own unique alphanumeric identifier to form a distinctive e-mail mailing address. That address may be used by the subscriber to exchange electronic mail with any one of tens of millions of other Internet users who have electronic mail capability. E-mail sent to CompuServe subscribers is processed and stored on CompuServe’s proprietary computer equipment. Thereafter, it becomes accessible to CompuServe’s subscribers, who can access CompuServe’s equipment and electronically retrieve those messages.

Over the past several months, CompuServe has received many complaints from subscribers threatening to discontinue their subscription unless CompuServe prohibits electronic mass mailers from using its equipment to send unsolicited advertisements. CompuServe asserts that the volume of messages generated by such mass mailings places a significant burden on its equipment which has finite processing and storage capacity. CompuServe receives no payment from the mass mailers for processing their unsolicited advertising. However, CompuServe’s subscribers pay for their access to CompuServe’s services in increments of time and thus the process of accessing, reviewing and discarding unsolicited e-mail costs them money, which is one of the reasons for their complaints.

PAGE 5

CompuServe has notified defendants that they are prohibited from using its proprietary computer equipment to process and store unsolicited e-mail and has requested them to cease and desist from sending unsolicited e-mail to its subscribers. Nonetheless, defendants have sent an increasing volume of e-mail solicitations to CompuServe subscribers.

In an effort to shield its equipment from defendants’ bulk e-mail, CompuServe has implemented software programs designed to screen out the messages and block their receipt. In response, defendants have modified their equipment and the messages they send in such a fashion as to circumvent CompuServe’s screening software. Allegedly, defendants have been able to conceal the true origin of their messages by falsifying the point-of-origin information contained in the header of the electronic messages. Defendants have removed the “sender” information in the header of their messages and replaced it with another address. Also, defendants have developed the capability of configuring their computer servers to conceal their true domain name and appear on the Internet as another computer, further concealing the true origin of the messages. By manipulating this data, defendants have been able to continue sending messages to CompuServe’s equipment in spite of CompuServe’s protests and protective efforts.

Defendants assert that they possess the right to continue to send these communications to CompuServe subscribers. CompuServe contends that, in doing so, the defendants are trespassing upon its personal property.

II.

The grant or denial of a motion for preliminary injunction rests within the discretion of the trial court. Deckert v. Independence Shares Corp., 311 U.S. 282 (1940). In determining whether a motion for preliminary injunction should be granted, a court must consider and balance four factors:

PAGE 6

(1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the injunction. Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994); International Longshoremen’s Assoc. v. Norfolk S. Corp., 927 F.2d 900, 903 (6th Cir. 1991). None of these individual factors constitute prerequisites that must be met for the issuance of a preliminary injunction, they are instead factors that are to be balanced. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). A preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a full trial on the merits. Indeed, “[a] party. . . is not required to prove his case in full at a preliminary injunction hearings.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

III.

This court shall first address plaintiff’s motion as it relates to perpetuating the temporary restraining order filed on October 24, 1996. That order enjoins defendants from:
(i) Using CompuServe accounts or CompuServe’s equipment or support services to send or receive electronic mail or messages or in connection with the sending or receiving of electronic mail or messages;

(ii) Inserting any false reference to a CompuServe account or CompuServe account or equipment in any electronic message sent by Defendants; and

(iii) Falsely representing or causing their electronic mail or messages to bear the representation that any electronic mail or message sent by Defendants was sent by or originated from CompuServe or a CompuServe account.

PAGE 7

(Temporary Restraining Order at 4).

As a general matter, the findings of this Court enunciated in its temporary restraining order are applicable to the request for preliminary injunction now at issue. The behavior described in subsections (ii) and (iii) of the temporary restraining order would be actionable as false representations or descriptions under Section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a). Also, the same behavior is actionable under the Ohio Deceptive Trade Practices Act, Ohio Rev. Code Section 4165(B) and (D).

Defendants argue that the restrictions in the temporary restraining order are no longer necessary because defendants no longer have a CompuServe account. That being the case, a preliminary injunction perpetuating the prescribed activity articulated in subsection (i) of the temporary restraining order will present no hardship at all to defendants. Next, it does not appear that defendants would need to have a CompuServe account to perpetrate the prescribed acts articulated in subsections (ii) and (iii) of the temporary restraining order. Therefore, the fact that defendants no longer have an account with plaintiff does not vitiate the need which CompuServe has demonstrated for an injunction prescribing the acts set forth in those subsections.

For the foregoing reasons and the reasons articulated in the temporary restraining order issued by this Court, defendants Cyber Promotions, Inc. and its president Sanford Wallace are hereby enjoined from performing any of the acts therein described during the pendency of this litigation.

IV.

This Court will now address the second aspect of plaintiff’s motion in which it seeks to enjoin defendants Cyber Promotions, Inc. and its president Sanford Wallace from sending any unsolicited advertisements to any electronic mail address maintained by CompuServe.

PAGE 8

OPINION

LORETTA A. PRESKA, United States District Judge:

The Internet may well be the premier technological innovation of the present age. Judges and legislators faced with adapting existing legal standards to the novel environment of cyberspace struggle with terms and concepts that the average American five-year-old tosses about with breezy familiarity.[1] Not surprisingly, much of the legal analysis of Internet-related issues has focused on seeking a familiar analogy for the unfamiliar. Commentators reporting on the recent oral argument before the Supreme Court of the United States, which is considering a First Amendment challenge to the Communications Decency Act, noted that the Justices seemed bent on finding the appropriate analogy which would tie the Internet to some existing line of First Amendment jurisprudence: is the Internet more like a television? a radio? a newspaper? a 900-line? a village green? See. e.g., Linda Greenhouse, What Level of Protection for Internet Speech? High Court Weighs Decency-Act Case, N. Y. Times, March 24, 1997, at C5; see also Denver Area Educ. Telecommunications Consortium v. Federal Communics. Comm’n, 116 S. Ct. 2374, 2419-21 (1996) (Thomas, J., concurring in the judgment and dissenting in part) (criticizing the majority for declining to determine whether cable television is more closely analogous, for purposes of First Amendment analysis, to a print medium or a broadcast medium). This case, too, depends on the appropriate analogy. I find, as described more fully below, that the Internet is analogous to a highway or railroad. This determination means that the phrase “information superhighway” is more than a mere buzzword; it has legal significance, because the similarity between the Internet and more traditional instruments of interstate commerce leads to analysis under the Commerce Clause.

BACKGROUND

The plaintiffs in the present case filed this action challenging New York Penal Law § 235.21(3) (the “Act” or the “New York Act”), seeking declaratory and injunctive relief. Plaintiffs contend that the Act is unconstitutional both because it unduly burdens free speech in violation of the First Amendment and because it unduly burdens interstate commerce in violation of the Commerce Clause. Plaintiffs moved for a preliminary injunction enjoining enforcement of the Act; defendants opposed the motion. A factual hearing was held from April 3 to April 7, 1997 and oral argument conducted on April 22, 1997. For the reasons that follow, the motion for a preliminary injunction is granted.

I. Parties to the Action

Plaintiffs in the present action represent a spectrum of individuals and organizations who use the Internet to communicate, disseminate, display, and access a broad range of communications. All of the plaintiffs communicate online both within and outside the State of New York, and each plaintiff’s communications are accessible from within and outside New York. Plaintiffs include:

American Library Association, Freedom to Read Foundation, Inc., New York Library Association, and Westchester Library System are organizations representing the interests of libraries. Libraries serve as both access and content providers on the Internet, providing their patrons with facilities to access the Internet. Libraries also post their card catalogues, information about upcoming events and online versions of text or art from their collections, as well as sponsoring chat rooms.

American Booksellers Foundation For Free Expression (“ABFFE”) is a national association of general interest and specialized bookstores formed to protect free expression rights. ABFFE has many members who use the Internet and electronic communications to obtain from publishers information and excerpts, some of which may contain sexually explicit passages.

Association of American Publishers (“AAP”) is a national association of publishers of general books, textbooks, and educational materials. AAP has many members who actively use and provide content on the Internet, both creating and posting electronic products and using the Internet as a communication and promotional tool for their print publishing activities.

BiblioBytes is a private, profit-seeking enterprise that uses the World Wide Web (the “Web”) to provide information about and to sell electronic books. BiblioBytes offers titles in a variety of genres, including romance, erotica, classics, adventure, and horror.

Magazine Publishers of America (“MPA”) is a national association of publishers of consumer magazines. MPA’s members publish magazines in print form, but are also beginning to offer publications in electronic formats available to the public on the Internet or through online service providers.

Interactive Digital Software Association (“IDSA”) is a non-profit trade association of United States publishers of entertainment software. IDSA has many members who both sell their software in retail outlets and make their entertainment software available to the public on the Internet for demonstration, purchase, and play.

Public Access Networks Corporation (“Panix”) is an Internet service provider serving subscribers located in the New York area. Panix also hosts various organizational Web pages, assists its subscribers in creating individual Web pages, and hosts online discussion groups and chat rooms.

ECHO is a for-profit Internet service provider that offers a “virtual salon” to Internet users. ECHO and its subscribers provide content on the Internet through the posting of Web sites, including personal home pages, and through over 50 discussion groups oriented to subscribers’ interests.

New York City Net (“NYC Net”) is a for-profit Internet service provider catering primarily to lesbians and gay men in the New York area. NYC Net provides access services and content specifically oriented to gay and lesbian interests, including a large number of online discussion groups and chat rooms.

Art on the Net is a non-profit organization with an international artist site (“art.net”) on the Web. Art on the Net assists over 110 artists from all over the world in maintaining online studios.

Peacefire is an organization whose membership consists primarily of minors. It was formed to protect the rights of citizens under the age of 18 to use the Internet. Peacefire’s members use the Internet to communicate and access a wide variety of information. Peacefire’s founder points out in his Declaration that Internet access is particularly important to those members who are too young to drive and might otherwise be unable to view materials from museums, libraries, and other institutions to which their families are unwilling to transport them. (See Declaration of Bennett Haselton, sworn to on March 12, 1997, at p. 4.

American Civil Liberties Union (“ACLU”) is a national civil rights organization. The ACLU maintains a Web site on which it posts civil liberties information and resources, including material about arts censorship, obscenity laws, discrimination against lesbians and gays, and reproductive choice. In addition, the ACLU hosts unmoderated online discussion groups that allow citizens to discuss and debate a variety of civil liberties issues.

Defendants in this case are the Governor and the Attorney General of New York. Defendants have raised the question of whether an injunction against those parties would also bind the sixty-two District Attorneys in New York who would actually be mounting prosecutions against alleged violators of the Act. Fed. R. Civ. P. 65(d) provides:

Every order granting an injunction . . . is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Thus, parties such as the local District Attorneys who “participate” in the enjoined activities with defendants and who have actual notice of the injunction would be bound. See American Booksellers v. Webb, 590 F. Supp. 677, 693-94 (N.D. Ga. 1984) (holding that an injunction against the Attorney General also binds state law enforcement officials who might seek to enforce the challenged Act); see also United Transportation Union v. Long Island RR Co., 634 F.2d 19, 22 (2d Cir. 1980) (binding non-party Attorney General to the terms of an injunction against the defendants because Attorney General “undoubtedly had knowledge of the instant action and could have participated therein had he chosen to do so”), rev’d on other grounds, 455 U.S. 678 (1982). Thus, a preliminary injunction would effectively bar enforcement of the Act whether the prosecution happened to be brought directly by the Attorney General’s office or by one of the individual District Attorneys.

II. The Challenged Statute

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