UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

Plaintiffs hereby submit this Memorandum of Law in Opposition to Defendant's Motion to Dismiss, pursuant to Pretrial Order No. 5.

INTRODUCTION

Defendant has filed a motion to dismiss Plaintiffs' challenge to the Child Online Protection Act ("COPA"), 47 U.S.C. § 231, because she alleges that the Plaintiffs lack standing to bring their claims. As discussed more fully below, Plaintiffs clearly have standing to bring a facial challenge to COPA because it directly threatens the rights of Plaintiffs and millions of other Internet speakers and users to communicate protected speech. Boiled down to its essence, Defendant's argument is in fact a request for the Court to re-write COPA to cure its constitutional defects. Her argument in no way defeats Plaintiffs' standing, because Plaintiffs are at risk of prosecution under COPA if their interpretation of the statute is correct. See American Booksellers Ass'n v. Virginia, 484 U.S. 383, 392 (1988). Moreover, given the plain language of the statute, there is simply no way for the Court to rewrite COPA to cure its fatal overbreadth, or to eliminate its chilling effect on protected speech. See Reno v. ACLU, 117 S. Ct. 2329, 2350 (1997) ("ACLU I"); Blount v. Rizzi, 400 U.S. 410, 419 (1971).

Defendant is unclear as to whether she is bringing a motion to dismiss for lack of standing under Fed. R. Civ. P. 12(b)(6) or 12(b)(1), but she clearly relies on several of Plaintiffs' declarations. (See, e.g., Def.'s Br. at 28-31, 43-50). ¹ If treated as a 12(b)(6) motion, the Court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501 (1975). Thus, Defendant's motion must be denied because Plaintiffs have alleged that the law directly harms their ability to communicate constitutionally protected speech.

Given the current posture of this case, and the hearing scheduled for January 20-22, 1999 on Plaintiffs' motion for a preliminary injunction, Plaintiffs suggest that the Court treat Defendant's motion as a 12(b)(1) motion, and consider the materials submitted at the hearing in resolving the motions of both parties. As Plaintiffs argue in their legal memoranda, and will establish through the evidence at the hearing, Plaintiffs are likely to succeed in their claim that COPA violates the First Amendment on its face because it threatens with criminal and sever civil penalties a large amount of speech that adults are constitutionally entitled to communicate. Thus, Plaintiffs' motion for a preliminary injunction should be granted, and Defendant's motion to dismiss should be denied.

ARGUMENT

I. PLAINTIFFS CLEARLY HAVE STANDING UNDER WELL-ESTABLISHED RULES IN FIRST AMENDMENT CASES

Defendant largely ignores the Supreme Court case directly on point that clearly establishes Plaintiffs' standing to challenge COPA. In Virginia v. American Booksellers Ass'n, the Supreme Court considered whether booksellers and membership organizations had standing to challenge a state "harmful to minors" law. See Virginia v. American Booksellers Ass'n, 484 U.S. 383, 384 (1988). The statute made it a crime to "display" materials that were harmful to minors for commercial purposes in a manner whereby "juveniles [may] examine and peruse" them. Id. at 383. Plaintiffs challenged the law on its face, arguing that it "substantially restrict[ed] access to adults because of the economically devastating and extremely restrictive measures booksellers must adopt to comply," and that the law was overbroad and vague. Id. at 388. Noting that it was "not troubled by the pre-enforcement nature of the suit," id. at 393, the Supreme Court applied well-accepted rules in First Amendment cases to hold that Plaintiffs clearly had standing to challenge the statute.

To bring a cause of action in federal court requires that there be some "'threatened or actual injury resulting from the putatively illegal action.'" American Booksellers Ass'n, 484 U.S. at 392 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975) (citations omitted). Plaintiffs meet that requirement in challenging COPA, just as the booksellers did in American Booksellers Ass'n, because "the law is aimed directly at Plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution." Id. (citing Craig v. Boren, 429 U.S. 190 (1976); Doe v. Bolton, 410 U.S. 179, 188 (1973)). Plaintiffs have provided numerous examples in the Complaint, and will introduce evidence at the preliminary injunction hearing, of speech they communicate that may violate COPA, and of the significant burdens imposed by COPA's defenses.² Thus, Plaintiffs, like the booksellers, have alleged "an actual and well-founded fear that the law will be enforced against them." American Booksellers Ass'n, 484 U.S. at 393.

Under American Booksellers Ass'n, Plaintiffs also clearly have standing to assert the rights of third parties because they are challenging COPA on its face:

[I]n the First Amendment context litigants are permitted to challenge a statute not because their own rights to free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.

Id. at 392-93 (quoting Secretary of State of Maryland v. Munson, 467 U.S. 947, 956-57 (1984)).

American Booksellers Ass'n is indicative of a long line of cases holding that standing rules are relaxed in First Amendment cases, particularly facial challenges to content-based regulations of speech.³

A. Plaintiffs Have Standing to Challenge COPA On Its Face

Defendant's standing argument never addresses the primary claim Plaintiffs bring in this case: that COPA is constitutionally invalid on its face because it suppresses "a large amount of speech that adults have a constitutional right to receive and to address to one another." ACLU I, 117 S. Ct. at 2346. Defendant thus ignores the nature and purpose of First Amendment facial challenges to overbroad statutes, and the corresponding reasons for the relaxed standing rules in such cases. Facial challenges are critically important in the area of First Amendment rights precisely because, as the Supreme Court explained in New York State Club, statutes drawn too broadly "'create[] an impermissible risk of suppression of ideas.'" New York State Club Ass'n v. City of New York, 487 U.S. 1, 11 (1988) (quoting City Council v. Taxpayers for Vincent, 466 U.S. 789, n. 15 (1984)); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992); Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Facial invalidation is called for where

[a] statute imposes a direct restriction on protected First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the State's objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech.

Munson, 467 U.S. at 967-68 (citing Villiage of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980)).

Facial challenges by their nature ask the Court to enjoin a law even as to parties not before the Court, and necessarily provide litigants with third-party standing to assert the rights of others. Thus, each Plaintiff in this case has third-party standing to challenge COPA on its face as overbroad because COPA threatens to chill not just their own speech, but "the expression of [persons] not before the court." Forsyth County, 505 U.S. at 123.⁴ The doctrine of third-party standing arose in substantial overbreadth cases in order to permit facial challenges to laws that may inhibit free expression "almost as easily by the potential or threatened use of power as by the actual exercise of that power." Id.; see also Broadrick, 413 U.S. at 611-13; Brockett v. Spokane Arcades, 472 U.S. 491, 504 (1985); Board of Trustees v. Fox, 492 U.S. 469, 484, (1989), aff'd 42 F.3d 135 (2d Cir. 1994); National Treasury Employees Union v. United States, 990 F. 2d 1271, 1280 (D.C. Cir. 1993) (Randolph, J., concurring) (citing numerous cases), aff'd in part, rev'd in part on other grounds, 513 U.S. 454 (1995). The right to bring a facial challenge ensures that affected speakers and listeners will not have to self-censor their speech until each possible application of the statute is litigated on a case-by-base basis. See ACLU I, 929 F. Supp. at 867 & n.3; American Library Ass'n v. Pataki, 969 F. Supp. at 160, 167-68; ACLU v. Johnson, 4 F. Supp. 2d at 1029, 1033⁵.

Applying this well-established case law, this Court can and should deny Defendant's motion to dismiss because each of the Plaintiffs clearly has standing to challenge COPA on its face.⁶ Only if the Court ultimately rules on the merits that COPA is not invalid on its face would it be necessary for the Court to decide whether Plaintiffs have standing to challenge COPA as applied to each of them individually.

B. Plaintiffs Have Standing to Challenge COPA As Applied to Them

Even if the Court were required to determine whether Plaintiffs had standing to challenge the law as applied to them individually, Defendant's argument clearly fails. In challenges to statutes that threaten fundamental rights, the standing requirement does not require a litigant to be prosecuted or actually threatened with prosecution before he may challenge the statute. See American Booksellers Ass'n, 484 U.S. at 389-90; Doe v. Bolton, 410 U.S. 179, 188 (1973). Rather, a litigant need only show a "reasonable threat of prosecution for conduct allegedly protected by the Constitution." Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 625 n.1 (1986).

Here, each Plaintiff has a reasonable fear of prosecution under COPA because each engages in speech that is constitutionally protected as to adults, but that may be "harmful to minors" as proscribed by COPA. Each Plaintiff has alleged that COPA's defenses impose an unconstitutional burden on its ability to communicate protected speech to adults. This allegation of burden is more than sufficient to confer standing to challenge COPA. ⁷ See American Booksellers Ass'n, 484 U.S. at 392; Erznoznik v. City of Jacksonville, 422 U.S. 205, 217 (1975). See also ACLU I, 117 S. Ct. at 2349-50; American Library Ass'n, v. Pataki, 969 F. Supp. 160, 180 (S.D.N.Y. 1997); ACLU v. Johnson, 4 F. Supp. 2d. 1029, 1031-32 (D.N.M. 1998). Given the nature of the Internet, each Plaintiff will be forced to self-censor speech or face prosecution under COPA. Forcing speakers to decide between Scylla and Charybdis, as COPA does, presents a concrete harm, not just an allegation of "subjective 'chill,'" as Defendant suggests.

Defendant claims that each Plaintiff's "fear of prosecution" under COPA is not "credible." (Def's. Br. at 22). When Defendant proffered this argument in Reno, the Court noted that "[i]n recent First Amendment challenges, the Supreme Court has itself paid close attention to extreme applications of content-based laws." ACLU I, 929 F. Supp. at 870. The Court held that "[i]f a content-based law 'can produce such an outcome', then [we may] consider those outcomes in our analysis." Id. (quoting Simon & Schuster, Inc. v. Members of New York Crime Victims Board, 502 U.S. 105, 123 (1991) (internal cites omitted). In Simon & Schuster, the Supreme Court held that a law requiring criminals to provide to their victims income from works describing their crimes violated the First Amendment. The Court considered the claim that the law could have been applied to works such as The Autobiography of Malcolm X, Civil Disobedience, or even the writings of Martin Luther King, Jr., even though the Court considered the claim to be "hyperbole." Simon & Schuster, 502 U.S. at 121-22; see also National Treasury Employees Union, 513 U.S. at 464-65 (noting that a ban on Federal employees receiving honoraria could reach "literary giants like Nathaniel Hawthorne and Herman Melville, ...Walt Whitman, . . . and Bret Harte").

As discussed, infra at III, each Plaintiff's fear of prosecution is not based on hyperbole, but on the necessary interpretation of the scope of COPA created by the plain language of COPA. However, even if the Court were to consider some of Plaintiffs' claims as exaggerated, "hyperbolic claims do not themselves weigh in the Government's favor." ACLU I, 929 F. Supp. at 870. Plaintiffs' speech could be prosecuted under COPA because the "harmful to minors" standard, "like the definition of obscenity, is not a rigid formula. Rather, it confers a large degree of autonomy to individual communities to set the bounds for decency for themselves." Id. at 871. Defendant's claim that federal prosecutors will use their discretion to apply the law heightens, rather than diminishes, the level of COPA's constitutional infirmity. ACLU I, 929 F. Supp. at 857 (the Department of Justice "is not a monolithic structure, and individual U.S. Attorneys in various districts of the country have or appear to exercise some independence . . . the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors").

II. There is No Other CASE LAW OR STATUTE THAT ALLAYS PLAINTIFFS' FEAR Of Prosecution UNDER COPA.

The remainder of the arguments in Defendant's motion to dismiss are not arguments that would defeat Plaintiffs' standing, but rather are arguments to construe the statute narrowly to avoid its overbreadth, and thus to urge the Court not to enjoin COPA. All of Defendant's arguments ignore the plain language of the statute. Defendant also relies on case law and other statutes that are either wholly irrelevant, or do nothing to support Defendant's proposed interpretation of COPA.

A. The cases cited by Defendant are wholly irrelevant to plaintiffs' fear under COPA

Defendant first asserts that the "harmful to minors" definition was approved by the Supreme Court in Ginsberg v. New York, 390 U.S. 629 (1968). She then illogically suggests that the use of similar language in COPA "requires Plaintiffs to do more to demonstrate that they face a credible threat of prosecution under COPA than had Congress chosen to use some new and untested definition." (Def.'s Br. at 13). First, there is no case law to support Defendant's claim that standing rules in First Amendment cases are somehow impacted by the amount of precedent cited by lawyers. Second, Defendant's arguments are an attempt to cure the statute's overbreadth, and have no impact on the Plaintiffs' standing. Third, neither Ginsberg nor the other cases cited by the Defendant diminish COPA's overbreadth, which arises from the application of a harmful to minors restriction to adults. In Ginsberg, the Supreme Court considered the constitutionality of a restriction on the face-to-face sale of material that is "harmful to minors" directly to minors. Unlike COPA, the statute in Ginsberg did not impact adult speech and did not address the problems posed by applying "harmful to minors" restrictions to online communications. See ACLU I, 929 F. Supp. at 859 (noting that restrictions relying on Ginsberg "that have been found constitutional were sensitive to the unique qualities of the medium at which the restriction was aimed"). Thus, Ginsberg and its progeny do nothing to alleviate the burden that COPA imposes on communications to adults.

Next, throughout section I.A. of Defendant's brief, she conflates adult obscenity cases and even child pornography cases in an attempt to narrow the plain language of COPA. For instance, the Defendant cites an obscenity case, Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985), for the proposition that material which "does no more than arouse, a 'good, old fashioned, healthy' interest in sex" would not violate the "prurient interest" prong of COPA. (See Def.'s Br. at 14). Because by definition the category of "prurience" that can be regulated through a harmful to minors law is broader than the category that can be proscribed for adults in obscenity statutes, the case does nothing to diminish Plaintiffs' fears that they could be prosecuted under COPA.

Defendant likewise cites a child pornography case, Osborn v. Ohio, 495 U.S. 103, 112 (1990), for the proposition that "'mere' nudity is not enough to render material 'harmful to minors'" under the second prong of COPA. (See Def.'s Br. at 14). Defendant argues that since the statute in Osborn required "a graphic focus on the genitals" before material could be termed "lewd," that the same standard must be met before material can be deemed "harmful to minors" under COPA. Again whether speech can be prohibited even for adults under child pornography laws is simply not relevant to determining whether the material may be "harmful to minors" under COPA. Defendant's claims ignore her own admission that COPA regulates a much broader category of material than can be constitutionally proscribed for adults. (See Def.'s Br. at 11).

B. THE STATE HARMFUL TO MINORS STATUTES DO NOT ALLAY PLAINTIFFS' FEARS OF PROSECUTION UNDER COPA

Defendant also wrongly suggests that state harmful-to-minors laws undermine Plaintiffs' fear of prosecution under COPA. (See Def.'s Br. at 18). In fact, there is no comparable state or federal statute, and no case law, to which Plaintiffs and other speakers can look to allay their fears of prosecution.

COPA is the only federal harmful-to-minors statute. Indeed, COPA is the first federal harmful-to-minors statute in any medium. Far from there being "decades of settled law developing the scope" of COPA's harmful-to-minors standard, as Defendant asserts (see Def.'s Br. at 18), in fact there has never been a federal prosecution of material that is "harmful to minors." Because COPA is a federal law, and because Plaintiffs' communications are all available nationwide and worldwide, Plaintiffs must worry not just about their local prosecutors, but about federal prosecutors all over the country. In addition, COPA outlaws speech according to whether it is offensive to "community standards," and Plaintiffs have no way of knowing when someone from a particular community will access their speech and put them at risk of prosecution. Plaintiffs' risk of prosecution from any community anywhere in the United States is thus quantitatively much greater than their risk of prosecution under any state harmful to minors law.

For a variety of reasons, the state harmful-to-minors statutes provide no guidance whatsoever to speakers as to how COPA's restrictions of online speech would be applied by federal prosecutors. First, none of the state laws cited by Defendant deal with the unique problems presented by regulation of online speech. Compare American Literary Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997); ACLU v. Johnson, 4 F. Supp. 2d. 1029 (D.N.M. 1998). Second, Defendant argues that "[m]ore than forty states have laws that regulate the sale and/or distribution of material deemed 'harmful to minors.'" (See Def.'s Br. at 12). But, many of these statutes regulate only the direct sale to minors of material that is "harmful to minors."⁸ These statutes, like the similar statute in Ginsberg and in stark contrast to COPA, do not interfere with adult speech at all. See discussion supra at 9-11. A smaller number of states have statutes that regulate the display, in the physical world, of material that is harmful to minors. See, e.g., Del. Code tit. 11 § 1365; Ga. Code § 16-12-103 (1996); Ind. Code § 35-49-3-3 (1996). These statutes have been narrowly construed by lower courts to avoid the constitutional problems they impose on speech for adults and older minors, and their constitutionality has never been considered by the Supreme Court. See, e.g., American Booksellers Ass'n, 372 S.E. 2d 618 (Va. 1988) (answering certified question from 484 U.S. 383 (1988)); American Booksellers Ass'n v. Webb, 919 F.2d 1493 (11th Cir. 1990); Davis-Keld Booksellers, Inc. v. McWhaten, 866 S.W. 2d 520 (Tenn. 1993).

Third, the definition of the prohibited speech in COPA is far less detailed than the descriptions of the prohibited speech in many of the state laws. Many of these state statutes provide detailed definitions of "sexual conduct" and analogous terms, making the statutes much less vague than COPA. ⁹ In contrast, COPA nowhere defines "sexual act or conduct," "normal or perverted sexual act," or "post-pubescent female breast." In ACLU I, the Supreme Court held that a similar lack of specificity contributed to the unconstitutional vagueness and chilling effect of the CDA. ACLU I, 117 S. Ct. at 2345.

Fourth, COPA prohibits material consisting entirely of written words. In contrast, some state harmful-to-minors statutes do not apply purely to textual materials. See, e.g., North Carolina (N.C. Gen. Stat. § 14-190.13 (1997)): South Carolina (S.C. Code Ann. § 16-15-375 (1997)); Arkansas (Ark. Code. § 5-68-502); Colorado (Col. Rev. Stat. § 18-7-502(1)): North Carolina (N.C. Code § 14-190.13); South Carolina (S.C. Code § 16-15-385).

Fifth, COPA's value-to-minors prong does not exclude material that has "educational" or "medical" value for minors. In contrast, many state harmful-to-minors statutes do not restrict speech that has "educational" or "medical" value as to minors.¹⁰ Congress' decision not to include the terms "educational" or "medical" in COPA's harmful-to-minors prong increases Plaintiffs' fear that they could be prosecuted for providing sexual health material over the Web. (Pls. Decl. E (Speyer) at ¶¶12, 15, 19-22, 16; Pls. Decl. E (Speyer) at Exs. 2, 3, 5, 10; Pls. Decl. B (Glickman) at Exs. 1-7; Pls. Tr. Ex. 5 (Laurila), 83-89 (Tepper).¹¹

Finally, to the extent that case law concerning state harmful-to-minors laws is relevant at all to Plaintiffs' fear under COPA, there is in fact case law to support Plaintiffs' fear that material such as theirs could be prosecuted. See Wisconsin v. Stankus, No. 95-2159-CR, 1997 Wisc. App. LEXIS 138 at * 2-3 (Wisc. App. Feb. 13, 1997) (upholding conviction for exposing a child to harmful material by displaying a photograph showing "a woman with a shirt and jacket open to the waist, without exposing her nipples" because the court read the statute to apply to "any part of the breast which is below a horizontal line drawn parallel to the top of the nipple.");¹² see also Vachon, 306 A.2d. 781, 784 (D.N.H. 1973) (holding that the sale of a button with the slogan "Copulation Not Masturbation" was obscene as to minors under Ginsberg), rev'd on other grounds, 414 U.S. 478 (1974); Bookcase Inc. v. Broderick, 18 N.Y.2d 71, 73, 218 N.E.2d 668, 620, 271 N.Y.S. 2d 947, 949 (Fanny Hill falls within the scope New York's "harmful to minors" law), rev'd on other grounds, 414 U.S. 454 (1966); American Library Ass'n v. Pataki 969 F. Supp. at 160 (plaintiffs communicating broad range of valuable speech found to have standing because of credible fear of prosecution under harmful to minors law); ACLU v. Johnson, 4 F. Supp. 2d. at 1029 (same).

III. PLAINTIFFS EACH COMMUNICATE MATERIAL THAT COULD BE FOUND "HARMFUL TO MINORS" UNDER COPA

Defendant also suggests that COPA can be narrowly construed to exclude plaintiffs and to include only "commercial pornographers." But the plain language of COPA provides Plaintiffs and millions of other speakers on the Web with reason to fear that they could be prosecuted, and thus supports Plaintiffs' argument that COPA is unconstitutionally overbroad.

A. Plaintiffs Reasonably Fear Prosecution under COPA

COPA defines material that is "harmful to minors" as:

[a]ny 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 manor 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). Thus, the plain language of COPA sweeps both written communications as well as pictures within its scope; indeed, COPA purports to regulate all forms of material communicated over the Internet. COPA would criminalize any representation of a "sexual act or sexual contact" whether "actual or simulated" or "normal or perverted," and any "lewd" display of the "female breast," that any community may find "patently offensive with respect to minors."

Defendant concedes that COPA "cover[s] some broader category of speech" than could be constitutionally be proscribed as to adults. (Def's. Br. at 11). Ignoring the plain language of COPA, however, Defendant insists that COPA should be construed to restrict only material that is "clearly pornographic and inappropriate for minor children."¹³ Defendant's non-binding construction does nothing to alleviate Plaintiffs fear of prosecution or the chill created by such a fear. See Adult Video Ass'n v. Barr, 960 F.2d 781, 785 (9th Cir. 1992) (although there had been no instance of pre-trial seizure in RICO obscenity cases, the fact that the plain language of the statute authorized such seizures created a reasonable fear sufficient to confer standing to challenge statute). Here, Plaintiffs have no reason to believe that they will not face criminal prosecution or civil penalties for their sexually explicit speech, which fits so squarely within the proscribed conduct of COPA. COPA cannot be narrowly construed to exclude Plaintiffs' speech without ignoring a great deal of text which Congress included in the statute.

Defendant argues that because material prohibited by COPA requires that it be considered "as a whole," Plaintiffs have no fear of prosecution. See 47 U.S.C. § 231(e)(6)(A) & (C). Plaintiffs' fear is bolstered by this language, however, because COPA does not address what part of the speaker's communications should be considered when material is "taken as a whole." The nature of the Internet allows material belonging to one speaker to be divided up over many separate Web pages. For instance, ArtNet's Web site includes photographs (Pls. Decl. D (Johnson) at Exs. 10-12) from Andres Serrano's series "A History of Sex," all of which are about sex and depict nudity and strong sexual content. COPA is unclear as to whether ArtNet's entire Web site, the Web pages containing the particular series, a single Web page, or a single photograph on a page will be judged as the whole. See City of Cincinnati v. Contemporary Arts Ctr., 566 N.E. 2d 214, 216-17 (Ohio Mun. 1990) (holding that in obscenity trial involving Robert Mapplethorpe exhibition that each individual photograph has a separate identity); see also Kois v. Wisconsin, 408 U.S. 229, 231 (1972) (reviewing court does not require the jury to consider the whole exhibit, only the five photographs cited in the indictment); Ashby v. State, 663 S.W.2d 453, 454 (Tex. Crim. App. 1984) (holding that in prosecution for exhibiting harmful material to a minor, a jury is only required to consider the "dominant theme taken as a whole" of what was actually viewed by the minor). COPA is completely unclear as to how the "taken as a whole" standard would be applied in the context of the Internet, and contributes to Plaintiffs' legitimate fear of prosecution under COPA.

Defendant also contends that the Plaintiffs' speech will be protected by the national standard of the value prong of the "harmful to minors" test. See 47 U.S.C. § 231(e)(6)(C). The value prong only purports to protect material that would have "serious literary, artistic, political, or scientific value for minors." 47 U.S.C. § 231(e)(6) (emphasis added). Because it would only protect speech that jurors believed had value for minors, Plaintiffs are legitimately fearful of prosecution for material that has value for adults, but may not be considered to have value for minors even applying a national standard. In addition, the value prong is still applied by local juries, see Pope v. Illinois, 481 U.S. 497, 500-03 (1987), which may have very different notions of national standards for minors than the Plaintiffs themselves hold. Furthermore, COPA's civil provisions require only a majority of a jury to find, by a mere preponderance of the evidence, that speech lacks value for minors. Of course, the Plaintiffs' personal beliefs that their speech has value would be irrelevant to a jury's determination of whether their speech has value under COPA.

In her brief, Defendant only selectively discusses Plaintiffs' speech, and ignores the wide variety of speech in which Plaintiffs engage that may be "harmful to minors." Yet, Defendant's own witness, Damon Hecker, stated at his deposition that he believed some of the pictures on the ArtNet Web site were sexually explicit or sexually enticing and may be found, in some communities, to be offensive to minors and without redeeming social value. (Hecker Depo. at 115-33;¹⁴ see also Pls. Decl. D (Johnson) at Ex. 4-7, 10-12, 20). Mr. Hecker also stated that he believed that certain stories about people's experiences using condoms, taken from the Condomania Web site, were sexually explicit, that some minors would find them prurient or erotic, and that some communities would find they were patently offensive and lacked value for minors. (Hecker Depo. at 134-36.)¹⁵

If Mr. Hecker, a law enforcement officer, concedes that some of the photographs of nudes on ArtNet's Web site could be considered "harmful to minors" in some communities, then Plaintiff West Stock also has a reasonable fear that its often provocative nude photographs could be prohibited by COPA. (See Pls. Decl. N. (Groman) at Exs. 2-19).¹⁶ Similarly, if Mr. Hecker believes that two stories about condom use on the Condomania Web site could be considered to "harmful to minors," it seems clear that numerous other explicit articles about sex published by Plaintiffs and others could be considered "harmful to minors" under COPA. For instance, the live witnesses at the TRO hearing testified about a variety of explicit sexual discussions on their Web sites. Norman Laurila of A Different Light Bookstores discussed a short story entitled "Shame on Me" in which the author graphically describes his first experience of masturbation. (Pls. Tr. Ex. 17). David Talbot of Salon Magazine described a number of stories that appear on the Salon Web site that graphically discuss sex. For instance, columnist Susie Bright describes her own sexual experiences including subjects such as anally penetrating her boyfriends (Pls. Tr. Ex. 21) and having sex outdoors. (Pls. Tr. Ex. 22). Mr. Talbot also read a sexually explicit excerpt from the Starr Report, available on the Salon Web site (Pls. Tr. Ex. 31), and described Salon's interactive "Table Talk," in which readers discussed the inability of some men to bring there partners to orgasm. (Pls. Tr. Ex. 27). Other Plaintiffs will provide similar testimony at the preliminary injunction hearing. (See Pls. Tr. Exs. 65-70 (Manley); 71, 74-80 (Reilly); 83-89 (Tepper))¹⁷.

Defendant claims that the "Bookstore Plaintiffs" do not have standing because the "short annotations of the contents of the books and, occasionally, thumbnail photographs of the book jackets" do not sufficiently depict sexual acts or nudity. (See Def.'s Br. at 25-26). Defendant is apparently arguing that as a matter of law, without reference to any language in COPA itself, a person cannot be prosecuted if the "harmful to minors" material happens to consist of small pictures or is "short" in length. In criminal prosecutions, state "harmful to minors" laws have been held to be applicable to even less graphic and less lengthy speech. See Vachon, 306 A.2d. at 784 (holding that the sale of a button with the slogan "Copulation Not Masturbation" was obscene as to minors).¹⁸

The bookstore Plaintiffs also fear prosecution based not only on their current offerings, but on the chilling effect that COPA will have on their future business plans. Powell's is currently planning to add several features to its Web site, including book reviews and excerpts, and a chat room. (See Pls. Decl. T (Sontz) at ¶ 20.) Powell's fears that COPA will hamper or prevent it from providing some of these new features. (See Pls. Decl. T (Sontz) at ¶ 34.) ACLU member Lawrence Ferlinghetti is the owner of City Lights Bookstore. In a highly publicized case, Mr. Ferlinghetti was prosecuted for obscenity for publishing Allen Ginsberg's "Howl." The Web site for his book store includes book descriptions and covers as well as free excerpts from some of Mr. Ferlinghetti's poetry. (Pls. Decl. M. (Ferlinghetti) at ¶ 1.) City Light's plans to expand its Web site to include more excerpts from the books and poems carried by the store. (Pls. Decl. M (Ferlinghetti) at ¶ 8; Pls. Decl. M (Ferlinghetti) at Ex. 2.) Defendant unblushingly suggests that prior prosecution should not increase Mr. Ferlinghetti's fear under COPA because he was acquitted. Given the incredible stress and burden of the lengthy criminal defense that Mr. Ferlinghetti personally experienced, it is amazing that Defendant would suggest his fear of future prosecution is unreasonable simply because he might ultimately be acquitted. The fact that COPA prohibits a broader scope of material than the obscenity statute used to prosecute Mr. Ferlinghetti previously only further supports his fear.¹⁹

Some of the Plaintiffs fear prosecution because they discuss gay and lesbian issues, including gay and lesbian sexuality.²⁰ Defendant dismisses these fears as "unreasonable" (Def. Br. at 25), ignoring a long and continuing history of both official and unofficial prejudice against homosexuals. See Jonathan Weinberg, Rating the Net, 19 Hastings Comm. & Ent. L.J. 453, 461 (1997) (quoting CYBERsitter filtering software representative as saying: "I wouldn't even care to debate the issue if gay and lesbian issues are suitable for teenagers. ... We filter anything that has to do with sex. Sexual orientation [is about sex] by virtue of the fact that sex is in the name."); Rosenblatt v. Common Sense Newspaper, 40 A.D.2d 723, 725, 337 N.Y.S. 2d 56, 58 (1972) (court vacated injunction against publication of newspaper with article on homosexuality, holding that the entire newspaper was not "utterly without redeeming social value," even if the article itself lacked value to minors) (dissent stated that homosexuals "should not be entitled to extol the alleged virtues and pleasures of homosexuality to the young whose judgment is still in the formative stages of emerging awareness of life").²¹

At the very least, Plaintiffs' fears are supported by their knowledge that the threshold of the public's tolerance for sexual conduct is much lower with regard to homosexuality than heterosexuality. See 10 U.S.C. § 654(a)(13) ("Don't ask, don't tell" policy states that "the presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability."); 28 U.S.C. § 1738C (Defense of Marriage Act) (allows states to refuse to recognize other states' laws allowing same sex couples to marry); Bowers v. Hardwick, 478 U.S. 186 (1986) (state's police power allows states to outlaw consensual homosexual sodomy).

B. The Association Plaintiffs Have Standing To Challenge COPA

Defendant also challenges, without support, the standing of association Plaintiffs American Civil Liberties Union (ACLU), American Booksellers Foundation for Free Expression (ABFFE), Internet Content Coalition (ICC), and Electronic Freedom Foundation (EFF), who challenge COPA on behalf of their members. An association has standing to bring suit on behalf of its members if it shows that "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit." Hunt v. Washington Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). To meet the first prong of this analysis, each association must show that one or more of its members would be directly affected by COPA. Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992). Because each associational Plaintiff has members whose First Amendment rights are violated by COPA, and because the individual members of each association are not required to resolve the claims in this case, the associations have standing to challenge COPA.

Each associational Plaintiff has members who have a reasonable fear that they could be prosecuted under COPA for engaging in sexually explicit speech that is constitutionally protected but proscribed by COPA. Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 625 n. 1 (1986). As discussed above, ACLU members Patricia Nell Warren and Lawrence Ferlinghetti clearly have standing. See supra at Part III.A. ACLU member Nadine Strossen also has standing to challenge COPA. Ms. Strossen writes a monthly column for the online magazine Intellectual Capital ("IC") in which she frankly discusses such topics as homosexuality, sex, pornography and censorship, and invites readers to post comments that are published with the column.²² (See Pls. Decl. U (Strossen) at ¶ 8.) Because Ms. Strossen, like many other freelance writers on the Web, does not control the IC Web site, she has no way to ensure that IC is complying with COPA. Ms. Strossen has already experienced several attempts to censor her writing and she fears that she may be similarly at risk under COPA. (See Pls. Decl. U (Strossen) at ¶¶ 12-13.) Other ACLU members also have standing to challenge COPA, including Mitchell Tepper of the Sexual Health Network. Mr. Tepper will testify at the preliminary injunction hearing that his Web site provides information for people with disabilities or illness that graphically and frankly discusses how they can attain sexual pleasure. (See Pls. Tr. Ex. 81-89 (Tepper).) As discussed above, ABFFE members Glad Day Bookstore and Sisterhood Bookstore also fear prosecution for material on their Web sites that may be harmful to minors. See supra at Part III.A.

EFF member John William Boushka believes his Web site, High Productivity Publishing, contains material that could be considered "harmful to minors" under COPA, and has already self-censored in response. Mr. Boushka's Web site includes the full text of his book Do Ask Do Tell: A Gay Conservative Lashes Back, which describes his personal experience as a gay man (see Pls. Decl. J (Boushka) at ¶ 7) and discusses the feelings young men have about their bodies and sexual performance. In response to COPA being passed, Mr. Boushka has already self-censored some material on his Web site. (See Pls. Decl. J (Boushka) ¶ 23.) He also fears that material he has not yet self-censored could subject him to liability under COPA. (See Pls. Decl. J (Boushka) at ¶ 29.) EFF member John Noring also has a reasonable fear that he could be prosecuted under COPA. Mr. Noring's Company, OmniMedia Digital Publishing, publishes electronic books that can be downloaded from the Internet. (Pls. Decl. Q (Noring) at ¶ 4.) Visitors to Mr. Noring's Web site can read the first few chapters of the books for free, but must purchase a password to be able to download an entire book. (Id. at ¶ 6.) Several of the book excerpts contain adult themes and graphically describe sexual acts (e.g., Kama Sutra, Fanny Hill, Perfumed Garden, and Lightning Bolt). (Id. at ¶ 9.)²³

The members of Plaintiff Internet Content Coalition have standing to challenge COPA. Christopher Barr, Vice-President of CNET and Co-Chairman of ICC, is anticipated to testify at the preliminary injunction hearing. CNET has a variety of information that some communities may find "harmful to minors," including a Kama Sutra screen saver that can be downloaded and articles about sex in video games that include graphic descriptions and sexual images. (Pls. Tr. Exs. 37-39.)

Defendant next claims that participation by all of the members of the associational Plaintiffs is required for standing purposes because Defendant must examine "each Plaintiffs' Web business" to resolve the issue of "whether COPA's affirmative defenses are technologically and economically feasible." (Def's. Br. at 56). This is another attempt by Defendant to ignore Plaintiffs' facial challenge to COPA, and to focus instead on their as-applied challenge. In Washington Apple Advert. Comm'n, 432 U.S. at 343, the Court stated that associational standing was satisfied when "neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit." In this case, the participation of all of the members is not required because Plaintiffs bring a facial challenge asserting that COPA must be enjoined as to everyone. See discussion supra at section I.A.

Lastly, Defendant misapprehends the claim of Plaintiff Electronic Privacy Information Center (EPIC's), which she characterizes as a "generalized" assertion of "the right to receive information." (Def's. Brief at 52, n.28). EPIC is not, as defendant suggests, a mere "listener Plaintiff." As set forth in the Complaint, EPIC conducts research and publishes its findings, (Compl. ¶¶ 137-139), and fears that COPA will impede its research and publication activities by requiring Web sites to demand identification and thereby erect barriers to EPIC's access of relevant information. (Id. at ¶¶ 140-141). The gravamen of EPIC's claim is that the statute inhibits the exercise of its First Amendment rights to conduct research and publish the results of its research. Specifically, COPA impermissibly conditions the organization's exercise of those fundamental rights on the loss of anonymity and the surrender of personally identifying information. See McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511, 1524 (1995) (striking down Ohio statute prohibiting anonymous distribution of campaign literature) (anonymity "exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society"); Talley v. California, 362 U.S. 60, 64-65 (1960); Lamont v. Postmaster Gen., 381 U.S. at 307; Denver Area Educ. Telecomms. Consortium v. FCC, 518 U.S. 727, 754 (1996); ACLU of Georgia v. Miller, 977 F. Supp. 1228, 1234 (N.D. Ga. 1997).²⁴

IV. Under the Plain Language of COPA, Plaintiffs Are All "Engaged in the Business" of Making Communications That Include Material That May Be "Harmful to Minors."

In another attempt to defeat Plaintiffs' standing, and a preliminary injunction, by proposing to rewrite COPA, Defendant argues that Plaintiffs are not at risk because they are not "engaged in the business" as defined by the statute. Ignoring the actual statutory language, Defendant tries to support its argument by relying on portions of COPA's legislative history and the legislative history of a completely unrelated statute. Because Defendant's reading of "engaged in the business" flies in the face of the plain language of COPA, Defendant's argument must be rejected.

A. Defendant Completely Misreads the Statute, Which Applies To Any Communication Over the Web That Includes Any Material That Is Harmful To Minors.

COPA covers all persons who 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) (emphasis added). COPA further states: "A person shall be considered to make a communication for commercial purposes only if such person is engaged in the business of making such communications."²⁵ 47 U.S.C. § 231 (e)(2)(A). COPA then defines "engaged in the business" to mean 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) (emphasis added). Thus, under the plain language of the statute, a speaker is subjected to civil and criminal penalties under COPA if, as a regular course of business, she communicates any material for commercial purposes on the Web that includes any material that is harmful to minors. In other words, if a speaker's online communications include any material -- even a single description or one image on a Web page -- that is "harmful to minors, that speaker is at risk of prosecution under COPA. Defendant miscites the plain language in the statute, and offers several narrower interpretations, although she never provides a consistent or binding interpretation. Nevertheless, she appears to ask the Court to rewrite to the statute to cover only persons who "regularly make harmful to minors communications for commercial purposes." (Def's. Br. at 11.) She further interprets "regular" to mean that COPA does not apply to "occasional" transmitters of material that is harmful to minors (whatever that means).

Defendant arrives at her imaginative interpretation of "engaged in the business" by assuming that the communications to which a speaker must devote "time, attention, or labor," as a regular course of business, are "harmful to minors communications." (See Def's Br. at 35). Relying on this assumption, Defendant argues that no Plaintiff meets the definition of engaged in the business, because the "normal function or role" of each Plaintiff's business is not the making of harmful to minors communications. (See Def's Br. at 35). Defendant's argument fails because she has confused the type of communication to which Plaintiffs must devote time as a regular course of business: the clear language of COPA dictates that a speaker is subject to penalties if, as a regular course of business, it devotes time, attention, and labor to making communications that include any material that is harmful to minors.

Indeed, the Court has already recognized that Defendant's reading of "engaged the business" is inconsistent with COPA's language. At the hearing for the temporary restraining order, the Court asked defense counsel if Salon Magazine meets the definition of "engaged in the business" set forth in COPA. Defense counsel responded by stating that Salon Magazine does not meet the definition because "harmful to minors communications [are] a very small part of what Salon is generally about, which is a general interest magazine that makes all kinds of communications of general interest." (TRO Transcript 150:10-13). The Court expressed doubt in Defendant's interpretation of "engaged in the business," and stated: "But the statute says any person who includes any material that in harmful to minors. The word includes seems to be pretty broad." (TRO Transcript 150:18-20) (emphasis added). The Court correctly interpreted the statute as covering any speaker whose communications over the Web include any material that is harmful to minors.

Significantly, the drafters of COPA have already laid to rest any ambiguities that could be read into the meaning of "engaged in the business." A parenthetical -- within the very section of the statute that defines the term "engaged in the business" -- states that, for COPA to apply to a person making communications that include material that is harmful to minors, "it is not necessary that the person make a profit or that the making [of] . . . such communications be the person's sole or principal business or source of income." 47 U.S.C. 230(e)(2)(B). Defendant unblushingly brushes aside this explicitly broad language.

Finally, Defendant wrongly suggests that a particular Plaintiff's own view of the purpose or mission of its Web site is somehow decisive or even relevant in determining whether the Plaintiff is "engaged in the business" of making communications covered by COPA. Defendant claims, for example, that because OBGYN.net's self-proclaimed mission is "to serve as 'an extensive online resource for obstetrics, gynecology, and other women's health issues,'" or because ArtNet describes itself as the "leading online vendor of fine art on the Web" and lists events and services of interest to the art world, those Plaintiffs somehow are not "engaged in the business" for purposes of COPA. (See Def's. Br. at 44 (quoting Comp. at ¶¶ 33, 116)). COPA would obviously be rendered completely meaningless if any speaker on the Web -- even a "commercial pornography" site -- could avoid prosecution simply by proclaiming that the purpose of its site is "artistic." The Plaintiffs' own characterization of the mission or purpose of their sites has absolutely no bearing on whether a government official might prosecute them for "engaging in the business" of communicating material "that includes any material that is harmful to minors."

B. Defendant Cannot Rely on Legislative History To Rewrite the Actual Language of COPA.

Unable to find support in the wording of the statute, Defendant reverts to the legislative history of COPA and of a federal obscenity statute to argue that COPA applies only to "commercial pornographers." This legislative history does not help her interpretation that COPA excludes speakers who "make occasional transfers" of materials that are harmful to minors, Def. Br. at 38, however, because it would deny any meaning to several terms in the statute. First, Congress made purely "written" materials covered by COPA, which negates any implication that COPA was intended to cover only commercial pornographers. 47 U.S.C. § 231(e)(6). Second, Congress specifically inserted the phrase "includes any material" three times into the statute's definitions. See § 231(a)(1); §231(e)(2)(B) (twice). Defendant's interpretation would deny any meaning to that phrase. It is a basic rule of statutory interpretation that courts should avoid an interpretation of a statute that renders certain words meaningless. See, e.g., Gustofason v. Alloyd Co., 513 U.S. 561, 574, 115 S. Ct. 1061, 1069 (1995) ("First, the Court will avoid a reading which renders some words altogether redundant."). For the same reason, Defendant cannot rely on her interpretation of the legislative history that contradicts the plain meaning of the statute. "[T]he legislative history of a statute may not compel a construction at variance with its plain words . . . ." 73 Am. Jur. 2d Statutes 2d; see also Kuehner v. Irving Trust Co., 299 U.S. 445, 449 (1937).

Defendant also argues that the legislative history of an entirely different statute supports her reading of COPA. She notes that both COPA and an obscenity statute, 18 U.S.C. § 1466, contain definitions of "engaged in the business," so the legislative history of § 1466 should be used to interpret that phrase in the context of COPA.²⁶ Defendant then goes on to argue that the legislative history of § 1466 supports the argument that "occasional" transmitters of material deemed "harmful to minors" would not be covered under COPA. (Def's Br. at p. 38). On the contrary, it is clear that under either statute, one can be prosecuted for the "occasional" "obscene" or "harmful to minors" transfer or communication. In § 1466(b), just as in COPA, Congress included additional language, beyond that quoted by Defendant, to ensure that parties who only occasionally transfer prohibited materials would in fact be subject to prosecution. The §1466(b) "engaged in the business" definition creates a "threshold" detailing the minimum conduct necessary to violate the statute by invoking a rebuttable presumption that anyone transferring two or more copies of any obscene publication, or two or more copies of any obscene article, or a total of five or more of such articles and/or publications is "engaged in the business" of transferring "obscene material." Under the obscenity statute, the low "threshold" deems anyone selling three copies of a video or publication later found to be "obscene" as one "engaged in the business" of transferring "obscene matter." Congress included this rebuttable presumption to make it clear that even minimal trafficking in prohibited materials could result in prosecution. See 134 Cong. Rec. E3750-52 (Statement of Rep. Hughes) (presumption necessary so one who sells "obscene material" does not escape prosecution by arguing he "trafficked in a relatively small number of obscene items").²⁷ Similarly, in the case of COPA, Congress on three occasions included language stating that the statute applies to persons whose communications "include any material" that is harmful to minors. This language ensures that speakers who occasionally transmit prohibited materials are covered.

Moreover, the language of COPA is even broader than that of § 1466. Defendant states that when Congress changed the wording of § 1466 from covering people who sell or transfer "print, video or audio communications generally" to those "engaged in the business of [transferring or] selling obscene matter," it did so to prevent "legitimate" sellers from being prosecuted under the Act. (Def's Brief at 39). COPA has no such limiting language, but rather defines one "engaged in the business" as anyone who "makes a communication, . . . by means of the World Wide Web, that includes any material that is harmful to minors." 47 U.S.C. 231(e)(2)(B). Unlike the obscenity statute, COPA is not limited to those who are "engaged in the business of [transferring prohibited matter]." See supra Part IV.A.

At the very least, the definition of "engaged in the business" is fundamentally vague. To eliminate this vagueness, the Court would have to strike out the phrase "includes any material" in three places, as well as the limiting parenthetical. Moreover, even this drastic alteration of the statutory language would not avoid the constitutional problems because, as discussed below, the nature of communications on the Web dictates that most of the Plaintiffs would meet even Defendant's strained interpretation of "engaged in the business."

C. Even Defendant's Definition Of "Engaged In the Business" APPLIES TO Plaintiffs

Even if Defendant's non-binding interpretation were adopted, COPA would still cover most of the Plaintiffs and many other speakers who make communications that may be harmful to minors as a regular course of their business. It is worth noting that Defendant herself is inconsistent about what she means by "regular" or "regularly." She indicates that "regular" may mean that the speaker consistently offers prohibited material over time on its site, but also indicates that "regular" may mean "amount," i.e. that a considerable percentage of the speaker's material is prohibited. Compare Def. Br. at 38 (COPA does not apply to "occasional" communications) and 40 ( COPA does not apply if person only "devote[s] some modicum of time" to prohibited communications) with TRO Transcript at 150:10-13 (arguing that Salon is not "engaged in the business" because only "a very small part" of its communications are harmful to minors). Under one or the other interpretation of "regular," all or nearly all of the Plaintiffs are covered.

Almost all of the Plaintiffs would clearly satisfy the "consistently offers" interpretation of "regular." A number of the Plaintiffs host ongoing interactive chat discussions that routinely involve sexual content; because these Plaintiffs solicit content that could elicit harmful to minors communications, they regularly make harmful to minors communications on their Web sites. Specifically, Salon provides a discussion group, called Table Talk, in which users can exchange ideas, which often are sexually explicit in nature. (See TRO Transcript Talbot 85:9-17). Riotgrrl also devotes regular columns to candid discussions about sex (see Pls. Decl. L (Douglas) at ¶¶ 29-42 ("Kat (a regular columnist)" writes columns with strong sexual content) and provides a chat room, called InterRiot, in which visitors to the site regularly exchange ideas about sexuality and often use sexually explicit language (see Pls. Decl. L (Douglas) at ¶¶ 43-46). Similarly, PlanetOut's Web site always contains chat rooms devoted to sexuality. (Pls. Tr. Ex. 74 (Rielly).) Thus, because a number of Plaintiffs and similar speakers have ongoing discussions on their Web sites that may be harmful to minors, COPA's overbreadth is not cured even under the Defendant's narrow interpretation of "engaged in the business."

In addition, all or nearly all of the Plaintiffs provide archived material on their sites and therefore consistently offer harmful to minors communications. For example, Plaintiff ArtNet.com archives all of its content and thus will always contain such material as Andres Serrano's "Auto-Erotic" (see Pls. Decl. D (Johnson) at Ex. 12), and Ashley Bickerton's "Rosie and the General" (see Pls. Decl. D (Johnson) at Ex. 11). Similarly, Riotgrrl archives all of its material and is therefore always communicating such stories as "Anatomy of a Jack-Off Queen" (see Pls. Decl. L (Douglas) at Ex. 16) and "Getting Off On the Web" (see Pls. Decl. L (Douglas) at Ex. 14). Additionally, both Salon's and C-NET's archives of news stories contain "The Starr Report" (see Pls. Tr. Exs. 31,43), which is rife with sexually explicit language.

Second, a number of the Plaintiffs would even meet the "amount" interpretation of "regular," i.e. that a considerable percentage of their material is prohibited.²⁸ Because the very mission of a number of Plaintiffs is to provide content about sexuality, a considerable portion of their speech could constitute prohibited materials. For example, OBGYN.net is designed to provide information about women's sexual health. (See Pls. Decl. E (Speyer) at ¶¶ 1-2). Not surprisingly, much of the information on the site explicitly describes and depicts women's breasts and vaginas (see Pls. Decl. E (Speyer) at ¶¶ 16-29) -- imagery that many communities may consider harmful to minors. Indeed, OBGYN.net allows and encourages users to engage in candid and often vivid discussions of sexual acts. (See Pls. Decl. E (Speyer) at ¶ 7). In much the same way, Condomania regularly communicates graphic descriptions of safer sex. (See Pls. Decl. B (Glickman) at ¶¶ 32-34). Additionally, Sexualhealth.com -- in its discussions about sex for people with disabilities -- regularly posts sexually explicit content. (See Tepper Anticipated Testimony). Similarly, the very purpose of Plaintiffs PlanetOut, Philadelphia Gay News, BlackStripe, and A Different Light Bookstores is to provide frank information, discussions, and resources about homosexuality. (See, e.g., Pls. Decl. S (Segal) at ¶ 19; Pls. Decl. V (Tarver) at Ex. 3-7; TRO Transcript Laurila at 10:1214:10; 29:15-34:25.) Some communities may consider such communications harmful to minors because they discuss sexual organs or sexual acts in explicit detail. In addition, some communities may consider such expressions to be harmful to minors simply because they discuss homosexuality. (See TRO Transcript Laurila at 29:15-34-25); see discussion supra at pp. 21-22. Because a considerable amount of their speech may be harmful to minors, these Plaintiffs meet even Defendant's interpretation of "engaged in the business."

Finally, Defendant argues that each Plaintiff's communications do not constitute harmful to minors communications, and thus fall outside of Defendant's misguided reading of "engaged in the business," because each Plaintiff's Web materials, when taken as a whole, have value. COPA does not suggest that the Web site be considered "as a whole" when determining whether a particular communication is harmful to minors. One can easily imagine a community that would find that, for example, ArtNet.com's communication of Andres Serrano's "The Kiss" (see Pls. Decl. D (Johnson) at Ex. 11) or A Different Light's communication of Gavin Dillard's "Shame" (see TRO Transcript Laurila at Ex. 17) has no literary, political, scientific or artistic value. Each Plaintiff fears prosecution for making such communications, even though that same community might find that each Plaintiff's Web site, when taken as a whole, has value.

In sum, Defendant's attempts to dispute Plaintiffs' standing by narrowing the definition of "engaged in the business" are wholly unconvincing, and ultimately do not cure the constitutional defects in COPA. By its own terms, COPA covers a speaker whose online communications include any material -- even a single description or one image on a Web page -- that is "harmful to minors. Because Plaintiffs as a regular course of their businesses make communications that include such material, each Plaintiff is at risk of prosecution.

Notes

1 Reference to "Def.'s Br. at ____" is to the Defendant's Brief in Support of its Motion to Dismiss, dated December 29, 1999.

2 American Booksellers Ass'n teaches that even if COPA's defenses were feasible, Plaintiffs would still clearly have standing. However, Plaintiffs will show at the preliminary injunction hearing that the economic and technological burden of COPA defenses make them practically unavailable to a vast number of speakers.

3 Following American Booksellers Ass'n, 484 U.S. 383, in the last two years, two federal district courts have held that plaintiffs whose speech was as diverse and broad as the plaintiffs in this case had standing to challenge two separate state online harmful to minors laws. See Amer. Library Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997); ACLU v. Johnson, 4 F. Supp. 1029 (D.N.M. 1998).

4In addition to Plaintiffs' standing to assert the rights of other speakers in a facial challenge, Plaintiffs also have standing to assert the rights of readers and users on the Internet who would be deprived of protected speech if COPA were not enjoined. See American Booksellers Ass'n, 484 U.S. at 793-94.

5In several cases, the Supreme Court has addressed overbreadth claims without finding it necessary to determine first whether the plaintiffs' own expression was or was not validly regulated. See ACLU I, 117 S. Ct. at 2329 (in facially invalidating the CDA, Court noted that "given the vast array of plaintiffs, the range of their expressive activities, and the vagueness of the statute," it would not "be practicable to limit our holding to a judicially defined set of specific applications"), aff'g, 929 F. Supp. 824, 830 n.9, 867 (E.D. Pa. 1996) (noting that the court "harbors no doubts" about the standing of each of the plaintiffs challenging the CDA). See also Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 572, 575-76 (1987) (holding restriction on expressive activity overbroad and therefore facially invalid without finding it necessary to rule on plaintiffs' claim that their own activity was constitutionally protected); Village of Schaumburg, 444 U.S. at 634 & n.8 (same).

6 At this stage, the Court need only find that some, or even just one, of the Plaintiffs has standing to challenge COPA on its face. Department of Labor v. Triplett, 494 U.S. 715, 720 (1990) ("since the committee has standing, we need not inquire whether the Department does as well") (citing Bowsher v. Synar, 478 U.S. 714, 721 (1986)).

7 The fact that the defenses are only affirmative defenses bolsters Plaintiffs' fear of prosecution. Under the plain terms of COPA, they can be prosecuted or have a civil complaint filed against them if they communicate any material that "harmful to minors" on the Web that is available to minors. Only at trial would they have the chance to assert the affirmative defenses as a shield to conviction or civil penalty.

8 See, e.g., Arkansas (Ark. Code. Ann. § 5-68-502 (Michie 1993)); Connecticut (Conn. Gen. Stat. § 53a-196 (1994)); District of Columbia (D.C. Code Ann. §22-2001(b)(1) (1996)); Hawaii (Haw. Rev. Stat. § 712-1215 (1994)); Idaho (Idaho Code § 18-1515) (1987)); Illinois (§ 720 Ill. Comp. Stat. 5/11-21) (1993)); Massachusetts (Mass Ann. Laws ch. 272, § 28) (1998)); New Hampshire (N.H. Rev. Stat. § 571-B (1997)); South Carolina (S.C. Code Ann. § 16-15-385 Law Co-op 1997)); Idaho (Idaho Code § 18-1515); Illinois (§ 720 I.L.C.S. 5/11-21); Massachusetts (Mass Ann. Laws ch. 272, § 28); Nebraska (Neb. Rev. Stat. 28-808); New Hampshire (N.H. St. § 571-B); South Carolina (S.C. Code § 16-15-385).

9See, e.g., District of Columbia (D.C. Code §22-2001(b) (1996)); Georgia (Ga. Code Ann. § 16-12-100 (1996)); Indiana (Ind. Code § 35-49(1) (1996); Iowa (Iowa Code Ann. § 728.2 (1997)); Kansas (Kansas Stat. Ann. § 21-4301c (1997)); Massachusetts (Mass Ann. Laws ch. 272, § 31 (1998)); Nevada (Nev. Rev. Stat. § 201.261-264 (1997)); New Hampshire (N.H. Rev. Stat. Ann. § 571-B:1 (1997)); New York (N. Y. Penal Law §235.20 (McKinney 1998)); North Carolina (N.C. Gen. Stat. § 14-190.13 (1997)); Ohio (Ohio Rev. Code Ann. § 2907.01 (Anderson 1998)); Oklahoma (21 Okla. Stat. tit. 21 § 1040.76 (1998)); Pennsylvania (18 Pa. Cons. Stat. §5903))); South Carolina (S.C. Code Ann. § 16-15-385 (1997)); South Dakota (S.D. Codified Laws § 22-24-27(1998)); Tennessee (Tenn. Code Ann. § 39-17-1901 (1998)); Utah (Utah Code Ann. § 76-10-1201 (1998)); Vermont (Vt. Stat. Ann. Tit. 13. § 2801 (1998)); Virginia (Va. Code Ann. § 18.2-390 (1998)); Wisconsin (Wisc. Code § 948.11 (1997)).

10 See, e.g., Cal. Penal Code § 313.3 (West 1997) (educational purposes protected); Kan. Stat. Ann. § 21-4301c (1997) (same); Or. Rev. Stat. § 2907.01 (same); Tex. Penal Code Ann. § 43.24 (same); Wis. Code § 948.11 (1988) (same); Mont. Code Ann § 45-8-206 (medical purposes protected); Okla. Stat. Ann tit. 21 § 1040.75 (1998) (same); Ohio Rev. Code Ann. § 2907.31 (Anderson 1998) (educational and medical purposes protected).

11Reference to "Pls. Decl. __ (Name) at ¶" and "Pls. Decl. __ (Name) at Ex. __", are to the Declarations and Exhibits filed in Support of Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction. Reference to "Pls. Tr. Ex. __" are to exhibits identified in Plaintiffs' list of Trial Exhibits dated January 11, 1998.

12With respect to female breasts, COPA is even more restrictive than the Wisconsin statute at issue in Wisconsin v. Stankus. COPA purports to criminalize the "lewd exhibition of the . . . post-pubescent female breast" whether above or below the nipple. 47 U.S.C. § 231(e)(6). Thus, a picture of a women in a bathing suit or even low-cut shirt could violate COPA.

13 Defendant's brief makes no attempt to define the scope of what material can be considered "clearly pornographic." (See Def's. Br. at 13). COPA itself never mentions, much less defines, pornographic material.

14 "Hecker Depo. at ____" refers to pages of an excerpt from the transcript of the deposition of C. Damon Hecker, taken December 30, 1998, which is submitted herewith as Exhibit 1 to the Declaration of Ann Beeson dated January 12, 1999.

15It is telling that in Defendant's own brief, she does not even attempt to claim that ArtNet's or Condomania Exhibits are not prurient. (See Pls. Decl. D (Johnson) at Exs. 10-13, 19-20; Pls. Decl. B (Glickman) at Ex. 5; Def's Br. at 23 n.13.)

16Mr. Hecker indicated that he would not consider some of the material on ArtNet to be sexually explicit because it was either "blurry," (Hecker Depo. at 121), or because the pictures were not very detailed, (Id. at 122). The photographs on West Stock are explicit photographs of nude or topless women in often erotic poses.

17 Many other Plaintiffs have submitted exhibits along with their declarations in this case that include graphic descriptions of sexual acts or sexual conduct which could be found to appeal to the "prurient interest of minors" and lack value for minors. RiotGrrl has submitted several exhibits that graphically describe sexual acts, and some that include nudity, (Pls. Decl. L (Douglas) at Exs. 3-16). Other exhibits are representative of the type of sexually explicit interactive discussions that take place on the RiotGrrl Web site. (Pls. Decl. L (Douglas) at Exs. 17-19.) ACLU member Patricia Nell Warren submitted several exhibits that included gay and lesbian issues with sexual themes including the description of a fourteen-year-old boy's first trip to a West Hollywood night club and what he sees and how it sexually excites him. (Pls. Decl. G (Warren) at Exs. 1-3.) Another of Ms. Warren's exhibits graphically recounts the experience of a fifteen-year-old who was date raped when she was thirteen. (Pls. Decl. G (Warren) at Ex. 5.)

18 ABFFE members Glad Day Bookstore and Sisterhood Bookstore submitted exhibits that display books of erotic writing or photography. (See Pls. Decl. A (Finan) Exs. 1-2.) The exhibits include annotations and photographs of book covers which depict nude men and women. Powell's Bookstore has an inventory of over 1 million books that can be searched on-line, (Pls. Decl. T (Sontz) at ¶¶ 15-16), some of which some communities may find would appeal to the prurient interests of minors. (See Pls. Decl. T (Sontz) at ¶ 33; Pls. Decl. T (Sontz) at Exs. 5-6.)

19 In fact, the U.S. Customs officer who first seized "Howl" justified the seizure by stating that "You wouldn't want your children to come across it." (Pls. Decl. T (Ferlinghetti) at ¶ 12.)

20Plaintiff BlackStripe's Web site is a resource for same-gender-loving individuals of African decent. Some of BlackStripe's articles are frank discussions of sexual language. One such article is Billie Ward's account of his extramarital affairs with other men. (Pls. Decl. V (Tarver) at Ex. 3.) An article by James Earl Hardy discusses racial issues and sex and opens by asking, "How do you challenge the white cock you're sucking?" (Pls. Decl. V (Tarver) at Ex. 4.) An article by Drew Alise Timmens, "Theft of Sexuality," discusses the portrayals of lesbians that are aimed at heterosexual male audiences. (Pls. Decl. V (Tarver) at Ex. 5.) ("The images are all big boobs, butts and pussies. ... and the Ôcome hither' look with oh-so-pouty lips just waiting to suck male genitalia ..."). Also, an essay entitled "Exposed" is a graphic depiction of a male prostitute being violated by a group of six men. (Pls. Decl. V (Tarver) at Ex. 7.) Plaintiff Philadelphia Gay News regularly runs articles with sexual content. The Arts section of their Web site, in particular, often contains material that may be considered "harmful to minors" in some communities. (See Pls. Decl. S (Segal) at Ex. 3(interview with gay porn star who describes his film alter ego); Pls. Decl. S (Segal) at Ex. 4 (description of a nude gay play in which the characters act out their erotic fantasies).)

21 As Defendant has stipulated, some of the Plaintiffs' Web sites have been blocked by filtering programs, which supports their fear that some communities consider their speech to be harmful to minors. See Stipulation of Facts, filed January 11, 1999.

22For instance, one reader wrote: " I love this forum, it never fails to amuse me. I address all of the posters that are for sexual freedom. Its their body right? Sure it is. So when you come home and find your little 16 year old Jenny naked on the couch with a twenty four year old college student having the kind of sex that you only dream about, you just smile, say hello, and Ôy'all have a nice time.' Because he is a responsible young man: he uses latex condoms, to protect Jenny from infectious nasties like Herpes, or even AIDS." (Pls. Decl. U (Strossen) at Ex. 1.)

23For example, the first chapter of Fanny Hill describes a lesbian encounter in fairly explicit terms: "Here she took my hand, and in a transport carried it where you will easily guess. But what a difference in the state of the same thing! A spreading thicket of bushy curls marked the full-grown, complete woman. Then the cavity to which she guided my hand easily received it; and as soon as she felt it within her, she moved herself to and fro, with so rapid a friction that I presently withdrew it, wet and clammy, when instantly Phoebe grew more composed, after two or three sighs, and heartfetched Oh's! and giving me a kiss that seemed to exhale her soul through her lips, she replaced the bedcloaths over us." See Broadrick, 18 N.Y.2d at 73, 218 N.E.2d at 626, 271 N.Y.S. 2d at 949 (Fanny Hill falls within the scope New York's "harmful to minors" law).

24 The courts have also recognized that the exercise of First Amendment rights may not be conditioned upon a surrender of personal privacy. Thus, in Greidinger v. Davis, 988 F.2d 1344, 1355 (4th Cir. 1993), the Fourth Circuit invalidated Virginia's requirement that citizens provide their Social Security numbers when registering to vote. The court found the challenged statutes "compel a would-be voter in Virginia to consent to the possibility of a profound invasion of privacy when exercising the fundamental right to vote." Id. at 1354. Likewise, EPIC asserts that COPA imposes a similar condition on its right to access information and conduct research. It clearly has standing to advance that claim.

25Defendant does not seriously contest that Plaintiffs are communicating with the objective of making a profit and, thus, that Plaintiffs are communicating for commercial purposes. Some of the Plaintiffs sell space on their Web sites to advertisers or members. (See, e.g., Pls. Decl. D (Johnson) at ¶¶ 26-29; Pls. Decl. L (Douglas) at ¶¶ 22-25; Pls. Decl. S (Segal) at ¶¶ 22-24; Pls. Decl. V (Tarver) at ¶ 5; Pls. Decl. E (Speyer) at ¶ 5; Pls. Decl. G (Warren) at ¶ 4; Pls. Decl. K (Bunnell) at ¶ 11; Pls. Decl. Y (Strossen) at ¶¶ 3-5; TRO Transcript Talbot at 12:7-18; Manley Anticipated Testimony; Reilly Anticipated Testimony). Others promote and sell their products over the Web. (See, e.g., Pls. Decl. B (Glickman) at ¶ 4; Pls. Decl. T (Sontz) at ¶ 22; Pls. Decl. J (Boushka) at ¶¶ 3,33; Pls. Decl. N (Groman) at ¶¶ 15-20; TRO Transcript Laurila at 14:11-15:24.) Indeed, Defendant's own expert witness agrees that COPA covers speakers who sell space on their Web sites to advertisers, as well as to speakers who promote and sell merchandise over the Web. (See Olsen Expert Report at ¶ 22.)

2618 U.S.C. § 1466 provides:

(a) Whoever is engaged in the business of selling or transferring obscene matter, who knowingly receives or possesses with intent to distribute any obscene book, magazine, picture, paper, film, videotape, or phonograph or other audio recording, which has been shipped or transported in interstate or foreign commerce, shall be punished by imprisonment for not more than 5 years or by a fine under this title, or both.

(b) As used in this section, the term "engaged in the business" means that the person who sells or transfers or offers to sell or transfer obscene matter devotes time, attention, or labor to such activities, as a regular course of trade or business, with the objective of earning a profit, although it is not necessary that the person make a profit or that the selling or transferring or offering to sell or transfer such material be the person's sole or principal business or source of income. The offering for sale of or to transfer, at one time, two or more copies of any obscene publication, or two or more of any obscene article, or a combined total of five or more such publications and articles, shall create a rebuttable presumption that the person so offering them is "engaged in the business" as defined in this subsection. 18 U.S.C. § 1466.

27 The rebuttable presumption in § 1466 also shows that the legislative history of §1466 is not an accurate guide even as to the meaning of § 1466. If Congress had truly intended §1466 to exclude those who occasionally transmit prohibited materials, as Defendant asserts, it would not have included the rebuttable presumption. The "amount" interpretation of "regular" is particular difficult to read into the statute, given the three inclusions of the "includes any material" phrase, as well as the inclusion of the limiting parenthetical in the definition of "engaged in the business." In addition, such an interpretation of "regular" would fly in the face of the common usage of that term. For instance, in Rule 803(6) of the Federal Rules of Evidence, concerning the admissibility of records in which "it was the regular practice of that business activity" to make that record, the term "regular" concerns how often such records are created, not the percentage of the person's actions that are devoted to creating such records.