UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF
THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER 
AND PRELIMINARY INJUNCTION

Plaintiffs respectfully submit this Memorandum of Law in Support of Their Motion for a Temporary Restraining Order and Preliminary Injunction.

PRELIMINARY STATEMENT

This case challenges provisions of the Child Online Protection Act ("COPA"), 47 U.S.C. § 231, which is Congress' second attempt to impose severe criminal sanctions on the display of constitutionally protected, non-obscene materials on the Internet. The full text of the COPA is included as Attachment A hereto. The first attempt, the Communications Decency Act ("CDA"), was soundly rejected by all nine justices of the Supreme Court in Reno v. American Civ. Liberties Union ("ACLU I"), 521 U.S. 844, 117 S. Ct. 2329 (1997), aff'g 949 F. Supp. 824, 831 (E.D. Pa. 1996). Recognizing that the Internet had become a powerful "new marketplace of ideas" and "vast democratic fora" that was "dramatically expanding" in the absence of government regulation, the Court imposed the highest level of constitutional scrutiny on content-based infringements of Internet speech. ACLU I, 117 S. Ct. at 2343, 2344, 2351.

Before the COPA was enacted, defendant wrote a seven-page letter to Congress outlining "serious concerns" about the bill, and warning that it "would likely be challenged on constitutional grounds." Defendant first warned that the bill "could require an undesirable diversion of critical investigative and prosecutorial resources" currently invested by the Department of Justice in combating child pornography and obscenity. Letter Dated October 5, 1998 from the Department of Justice to the Honorable Thomas Bliley, Chairman of the House Committee on Commerce (the "DOJ Letter") at 2, included as Attachment B hereto. Even if the COPA were enforced, defendant noted that the law might not have a "material effect in limiting minors' access to harmful materials." Id. at 3. Defendant then outlined "numerous ambiguities concerning the scope" of COPA's coverage that would render the legislation "problematic for purposes of the First Amendment." Id. at 4-6 (citing ACLU I, 117 S. Ct. at 2344). Congress passed the COPA despite defendant's warnings, and despite the Supreme Court's strong precedent against content-based Internet regulations in ACLU I. This case is the resulting constitutional challenge that defendant predicted.

For many of the reasons outlined in defendant's own letter to Congress, plaintiffs seek to have the COPA declared unconstitutional both on its face and as applied to them, and to enjoin defendant from enforcing it. As the following memorandum discusses in detail, the COPA's constitutional flaws are ultimately identical to the flaws that led the Supreme Court to strike down the CDA. Though the COPA, like the CDA, purports to restrict the availability of materials to minors, the effect of the law is to restrict adults from communicating and receiving expression that is clearly protected by the First Amendment.

Plaintiffs represent a broad range of individuals and entities who use the World Wide Web (the "Web") to provide free information on a variety of subjects, including sexually oriented issues that they fear could be construed as "harmful to minors." They range from long-established booksellers and large media companies to newer online magazines, and they provide general interest news as well as special interest content such as fine art, safer sex materials, and gay and lesbian resources. Because the COPA provides no way for speakers to prevent their communications from reaching minors without also denying adults access to them, the COPA directly threatens plaintiffs, their members, and millions of other speakers with severe criminal and civil sanctions for communicating protected expression on the Web. The COPA also violates the rights of millions of Web users to access and read constitutionally protected speech.

In the face of her own warning that the COPA raises serious constitutional questions, defendant is hard-pressed to argue that at least preliminary relief should not be granted to plaintiffs. For the reasons discussed below, and because "[t]he interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship," ACLU I, 117 S. Ct. at 2351, plaintiffs ask this Court to issue a temporary restraining order and preliminary injunction against enforcement of the COPA.

STATEMENT OF FACTS

A. Plaintiffs and Their Speech

Plaintiffs include seventeen organizations who sue on their own behalf, on behalf of their members, and on behalf of hundreds of thousands of people who read their online communications. Plaintiffs do not speak with a single voice or on a single issue, but all engage in speech that some communities may consider to be "harmful to minors" under the COPA, and that plaintiffs believe is constitutionally protected for adults and older minors. Plaintiffs communicate through written text, graphic and artistic images, and video and audio recordings, all of which are explicitly covered by the COPA. See 47 U.S.C. § 231(e)(6). Some of the plaintiffs also host web-based discussion groups and chat rooms, which allow readers to converse on particular subjects. See Speyer Decl. (OBGYN.net) at pp. 8-10; Talbot Testimony (Salon Magazine).

Like the vast majority of speakers on the Web, plaintiffs provide their information for free to users. See Hoffman Decl. at pp. 13-14. Nevertheless, all of the plaintiffs are engaged in speech "for commercial purposes" as defined in the COPA because they all communicate with the objective of making a profit. See 47 U.S.C. § 231(3)(2)(B); see also Johnson Decl. (ArtNet.com) at pp. 8-9; Glickman Decl. (Condomania) at p. 8; Talbot Testimony (Salon Magazine); Laurila Testimony (A Different Light).

More specifically, plaintiffs include the following:

• American Civil Liberties Union (ACLU) is a nationwide, nonpartisan organization of nearly 300,000 members dedicated to defending the principles of liberty and equality embodied in the Bill of Rights. The ACLU has many members who fear prosecution under the COPA, including the author Patricia Nell Warren, the poet Lawrence Ferlinghetti, and ACLU President Nadine Strossen.  
• A Different Light Bookstores operates bookstores in three major cities, and maintains a comprehensive Web site with information about books and music of interest to the gay and lesbian community.  
• American Booksellers Foundation for Free Expression (AFBBE) has over 300 member bookstores, over 75 of which use the Web to communicate information to readers and potential book purchasers about books on a wide range of subjects, including subjects covered by the COPA.  
• ArtNet Worldwide Corporation (ArtNet.com) is the leading online service for the art world. It provides, among other resources, reviews of artworks, information about museums, galleries, and exhibitions, and reproductions of works by certain artists or works exhibited at certain galleries.  
• BlackStripe is a Web-based resource for gay and lesbian individuals of African descent.  
• Condomania is the nation's first condom store and is a leading online seller of condoms and distributor of safer-sex related materials.  
• Electronic Frontier Foundation (EFF) is a nationwide, nonprofit organization committed to defending civil liberties in the world of computer communications. EFF has members who fear prosecution under the COPA, including Rufus Griscom, publisher of the online magazine "Nerve," and Open Enterprises, which maintains the "Good Vibrations" site on the Web.  
• Electronic Privacy Information Center (EPIC) is a nonprofit research organization that uses the Web to collect and distribute information concerning civil liberties and privacy issues arising in the new communications media.  
• Free Speech Media, LLC promotes extensive independent audio and video content on the Web.  
• Internet Content Coalition (ICC) is a nonprofit professional association that includes many well-known and high-profile providers of original content for the Web, including The New York Times, Time, Inc., Sony Online, MSNBC, CNET, and ZDNet.  
• OBGYN.net is a comprehensive international online resource center for professionals in obstetrics and gynecology, the medical industry, and the women they serve.  
• Philadelphia Gay News has been the leading print newspaper for the gay and lesbian community of Philadelphia for twenty-two years, and now also publishes on the Web.  
• Powell's Bookstore operates several bookstores, the largest of which is in Portland, Oregon, and maintains a comprehensive Web site with information on over one million books.  
• Riotgrrl is a popular "Webzine" that advocates positive empowerment and support for women.  
• Salon Internet, Inc. (Salon Magazine) is a leading online magazine featuring articles on current events, the arts, politics, the media, and relationships, as well as regular columns by well-known writers.  
• West Stock, Inc. maintains a Web site that displays and sells licenses for stock photographs. 

B. The Challenged Statute

The COPA, to be codified at 47 U.S.C. § 231, was signed into law on October 21, 1998 as part of the Omnibus Appropriations Act. Unless enjoined, the COPA will become effective on Friday, November 20, 1998, thirty days after the date of enactment. The COPA imposes criminal and civil penalties on persons who

knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, make[] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors . . . .

47 U.S.C. § 231(a)(1).

The penalties under the COPA are severe. Persons who violate § 231(a)(1) "shall be fined not more than $50,000, imprisoned not more than 6 months, or both." 47 U.S.C. § 231(a)(1). The COPA imposes additional penalties as follows:

(2) INTENTIONAL VIOLATIONS -- In addition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

(3) CIVIL PENALTY -- In addition to the penalties under paragraphs (1) and (2), whoever violates paragraph (1) shall be subject to a civil penalty of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation."

47 U.S.C. § 231(a)(2)-(3). Together, these penalties impose potential fines of $150,000 per day on speakers who violate the COPA, even if their Web site contains only one image that is harmful to minors.

The COPA's definition of material that is "harmful to minors" explicitly includes written material and recordings in addition to pictures. It reads:

The term 'material that is harmful to minors' means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that -- (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

47 U.S.C. § 231(e)(6). Significantly, the COPA does not define the relevant "community" for purposes of determining what is "harmful to minors" in the global medium of cyberspace.

The COPA defines "minor" as "any person under 17 years of age." 47 U.S.C. § 231(e)(7). It makes no distinction between material that may be "harmful" to very young minors and material that may be "harmful" to older minors.

The COPA defines the phrase "by means of the World Wide Web" to mean "by placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol." 47 U.S.C. § 231(e)(1).

The COPA defines "commercial purposes" as being "engaged in the business of making such communications." 47 U.S.C. § 231(e)(2)(A). The COPA then defines "engaged in the business" as meaning

that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income). A person may be considered to be engaged in the business of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such material to be posted on the World Wide Web.

47 U.S.C. § 231(e)(2)(B).

Section 231(b) of the COPA attempts to exempt certain persons from liability. It states:

For purposes of subsection (a), a person shall not be considered to make any communication for commercial purposes to the extent that such person is -- (1) a telecommunications carrier engaged in the provision of a telecommunications service; (2) a person engaged in the business of providing an Internet access service; (3) a person engaged in the business of providing an Internet information location tool; or (4) similarly engaged in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the content of the communication, except that such person's deletion of a particular communication or material made by another person in a manner consistent with subsection (c) or section 230 shall not constitute such selection or alteration of the content of the communication.

"Internet," "Internet Access Service," and "Internet Information Location Tool" are defined elsewhere in the COPA. See 47 U.S.C. § 231(e)(3)-(5).

Section 231(c)(1) of the COPA provides an affirmative defense to prosecution if the defendant:

in good faith, has restricted access by minors to material that is harmful to minors --

(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;

(B) by accepting a digital certificate that verifies age; or

(C) by any other reasonable measures that are feasible under available technology.

47 U.S.C. § 231(c)(1).

Section 231(d) of the COPA forbids the disclosure of "any information collected for the purposes of restricting access to such communications" to minors without prior consent. 47 U.S.C. § 231(d)(1)(A). However, there is no penalty for violation of this provision, and the COPA provides immunity to content providers for any actions taken to comply with the COPA. See 47 U.S.C. § 231(c)(2).

C. The World Wide Web

1. The Nature of the Online Medium

The Internet is a decentralized, global medium of communications that links people, institutions, corporations and governments around the world. ACLU I, 949 F. Supp. at 831. It is a giant computer network that interconnects innumerable smaller groups of linked computer networks and individual computers. ACLU I, 117 S. Ct. at 2334. While estimates are difficult due to the Internet's constant and rapid growth, it is currently believed to connect more than 159 countries and over 100 million users. ACLU I, 929 F. Supp. at 831. The amount of traffic on the Internet is doubling approximately every 100 days. 

Because the Internet merely links together numerous individual computers and computer networks, no single entity or group of entities controls the material made available on the Internet or limits the ability of others to access such materials. ACLU I, 117 S. Ct. at 2336. Rather, the range of digital information available to Internet users is individually created, maintained, controlled and located on millions of separate individual computers around the world.

The Internet presents extremely low entry barriers to anyone who wishes to provide or distribute information or gain access to it. Unlike television, cable, radio, newspapers, magazines or books, the Internet provides the average citizen or small business with an affordable means for communicating with, accessing and posting content to a worldwide audience.

The Web is currently the most popular way to provide and retrieve information on the Internet. Anyone with access to the Internet and proper software can post content on the Web, which may contain many different types of digital information -- text, images, sound, and even video. The Web comprises millions of separate but interconnected "Web sites," which in turn may have hundreds of separate "Web pages" that display content provided by particular persons or organizations. Any Internet user anywhere in the world with the proper software can create her own Web page, view Web pages posted by others, and then read text, look at images and video, and listen to sounds posted at these sites.

To gain access to the information available on the Web, a person uses a Web "browser" -- software such as Netscape Navigator, Mosaic, or Internet Explorer -- to display, print and download documents that use hypertext transfer protocol ("http"), the standard Web formatting language. Each document on the Web has an address that allows users to find and retrieve it. Most Web documents also contain "links." These are short sections of text or image that refer and link to another document. Through the use of these links from one computer to another and from one document to another, the Web for the first time unifies the diverse and voluminous information made available by millions of users on the Internet into a single body of knowledge that can easily be searched and accessed.

A number of search engines and directories -- such as Yahoo, Infoseek, and Lycos -- are available free of charge to help users navigate the Web. Once a user has accessed the search service, she simply types a word or string of words as a search request and the search service provides a list of sites that match the search string.

2. How Individuals Access the Web

Individuals have several easy means of gaining access to the Web. Internet service providers ("ISPs") offer their subscribers modem access to computers or networks linked directly to the Internet. Most ISPs charge a modest monthly fee, but some provide free or very low-cost access. ACLU I, 929 F. Supp. at 832-33. National "commercial online services," such as America Online and the Microsoft Network, serve as ISPs and also provide subscribers with additional services, including access to extensive content within their own proprietary networks. In addition, many educational institutions, libraries, businesses, and individual communities maintain computer networks linked directly to the Internet and thus the Web, and provide account numbers and passwords enabling users to gain access to the network. ACLU I, 117 S. Ct. at 2334.

Most users of the Internet are provided with a username, password and e-mail address that allow them to log on to the Internet and to communicate with other users. Many usernames are pseudonyms or pen names that provide users with a distinct online identity and help to preserve anonymity and privacy. The username and e-mail address are the only indicators of the user's identity; that is, persons communicating with the user will know them only by their username and e-mail address (unless the user reveals other information about herself through her communications).

3. Ways of Communicating and Exchanging Information Over the Web

The Web also allows individuals to communicate in discussion groups and chat rooms and by e-mail using hypertext transfer protocol. See Hoffman Decl. at pp. 18-19. Many Web sites use software applications, sometimes called "middleware," to provide users of their sites with access to discussion groups and chat rooms.

Discussion groups allow users of computer networks to post messages onto a public computerized bulletin board and to read and respond to messages posted by others in the discussion group. ACLU I, 117 S. Ct. at 2335. Discussion groups have been organized to cover virtually every topic imaginable. Id. Chat rooms allow a user to engage in simultaneous conversations with another user or group of users by typing messages and reading the messages typed by others participating in the "chat."

For example, plaintiff OBGYN.net sponsors discussion groups and chats that allow doctors to discuss women's health with their colleagues, and allow women to submit questions to be answered by medical professionals. These various discussion forums generate over one and a half million messages monthly, all of which are archived and can be searched and browsed by later users. See Speyer Decl. (OBGYN.net) at pp. 8-10 & Exhs. 5-7. Plaintiff Salon Magazine also sponsors and archives discussions on a wide range of current subjects; one recent topic was entitled "Can boys find the right spot?", which discussed whether men needed guidance to provide sexual pleasure to their partners. See Talbot Testimony (Salon Magazine), Exh. 27.

Online discussion groups and chat rooms create an entirely new global public forum where individuals can associate and communicate with others who have common interests, obtain instant answers to research questions, and engage in discussion or debate on every imaginable topic. ACLU I, 929 F. Supp. at 835.

Finally, it is possible to set up an account for electronic mail, commonly referred to as "e-mail," using the Web. Several commercial Web sites such as Yahoo and Hotmail will provide free e-mail accounts to individuals. These accounts allow individuals to use the Web to create, send, and receive e-mails with other individuals. Such accounts allow individuals who do not possess their own computer or Internet access account to establish a permanent e-mail address and to correspond with other individuals by using the Web at public libraries and other public Internet access sites. See Hoffman Decl. at p. 18.

As can be seen from the various ways that individuals can exchange information and communicate via this technology, the Web is "interactive" in ways that distinguish it from traditional media. For instance, users are not passive receivers of information as with traditional broadcast media; rather, users can easily respond to the material they receive or view online. In addition, Web users must actively seek out with specificity the information they wish to retrieve and the kinds of communications in which they wish to engage. For example, to gain access to material on the Web, a user must know and type the address of a relevant site or find the site by typing a relevant search string into a search engine. For this reason, as this Court found in ACLU I based on the testimony of the government's witness, the "odds are slim" that a user would enter a sexually explicit site by accident. 929 F. Supp. at 844-45, ¶ 88; Hoffman Decl. at p. 17.

4. The Value and Breadth of Speech "For Commercial Purposes" On the Web

The overwhelming majority of information on the Web is provided to users for free, regardless of its source. See Hoffman Decl. at pp. 13-14. Nevertheless, under new business models made possible by the unique qualities of the Web, the Web provides tremendous opportunities for individual entrepreneurs, start-up companies, and home-based businesses, as well as businesses that also exist in the offline world. See Glickman Decl. (Condomania) at pp. 2-3; Johnson Decl. (ArtNet.com) at pp. 3-4; Speyer Decl. (OBGYN.net) at pp. 3-4. The breadth of the plaintiffs' speech is indicative of the wide range of individuals and companies communicating on the Web for commercial purposes. See Hoffman Decl. at pp. 13-17. Although it is not possible to know the exact number of sites that are run by profit-making enterprises, the percentage of such cites has increased over time. See Hoffman Decl. at 13. The number of such sites is now more that 400,000 and may well be over one million.

These businesses make a profit (or attempt to make a profit) in several ways. Just like many traditional print newspapers, bookstores, and magazine publishers, many Web publishers generate revenue through advertising. See Talbot Testimony (Salon Magazine). In addition, content providers such as online booksellers, music stores, and providers of art services allow potential customers to browse their content for free -- similar to browsing in an actual book store or art gallery. See Johnson Decl. (ArtNet.com) at p. 6; Finan Decl. (ABFFE) at p. 9; Laurila Testimony (A Different Light). Finally, some online content providers make a profit by charging their content contributors, although users may access the content for free. See Johnson Decl. (ArtNet.com) at pp. 8-9. Thus, the COPA impacts a wide range of providers of free content, ranging from fine art to popular magazines to news and issue-oriented expression.

The value of these