PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PSINET, INCORPORATED; 

CHARLOTTESVILLE SEXUAL HEALTH &

WELLNESS CLINIC; PORTICO

PUBLICATIONS, LTD., Publisher of

Charlottesville Weekly; SILVERCHAIR

SCIENCE COMMUNICATIONS,

INCORPORATED; VIRGINIA ISP

ALLIANCE; ROCKBRIDGE GLOBAL

VILLAGE; AMERICAN BOOKSELLERS

FOUNDATION FOR FREE EXPRESSION;

THE PERIODICAL AND BOOK

ASSOCIATION OF AMERICA,

INCORPORATED; FREEDOM TO READ

FOUNDATION; SEXUAL HEALTH

NETWORK; CHRIS FILKINS, Proprietor  No. 01-2352

of the Safer Sex Institute; HARLAN

ELLISON; THE COMIC BOOK LEGAL

DEFENSE FUND; SUSIE BRIGHT; A

DIFFERENT LIGHT BOOKSTORES;

LAMBDA RISING BOOKSTORES;

BIBLIOBYTES; PEOPLE FOR THE

AMERICAN WAY,

Plaintiffs-Appellees,

and

UNITED STATES INTERNET SERVICE

PROVIDER ASSOCIATION,

Plaintiff,

v. 
WARREN D. CHAPMAN, 

Commonwealth Attorney; JAMES L.

CAMBLOSS, III, Commonwealth 

Attorney,

Defendants-Appellants. 

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

(CA-99-111-3)

Argued: October 28, 2002

Decided: March 25, 2004

Before NIEMEYER, Circuit Judge,

James R. SPENCER, United States District Judge for the

Eastern District of Virginia, sitting by designation, and

Andre M. DAVIS, United States District Judge for the

District of Maryland, sitting by designation.

Affirmed by published opinion. Judge Spencer wrote the opinion.

Judge Davis wrote a concurring opinion. Judge Niemeyer wrote a dissenting opinion. 

COUNSEL

ARGUED: William Henry Hurd, State Solicitor, OFFICE OF THE

ATTORNEY GENERAL, Richmond, Virginia, for Appellants.

Thomas W. Kirby, WILEY, REIN & FIELDING, L.L.P., Washington, D.C., for Appellees. ON BRIEF: Jerry W. Kilgore, Attorney

General of Virginia, Alison P. Landry, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

2 PSINET, INC. v. CHAPMAN
Appellants. Garrett M. Smith, MICHIE, HAMLETT, LOWRY, RASMUSSEN & TWEEL, P.C., Charlottesville, Virginia; Michael A.

Bamberger, SONNENSCHEIN, NATH & ROSENTHAL, New York,

New York; Elliot M. Mincberg, Lawrence S. Ottinger, PEOPLE FOR

THE AMERICAN WAY FOUNDATION, Washington, D.C.; Robert

M. O’Neil, J. Joshua Wheeler, THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION, Charlottesville, Virginia, for Appellees. 

OPINION

SPENCER, District Judge: 

This matter is before the Court on the Defendants’ appeal of the

Western District of Virginia’s grant of Summary Judgment in favor

of the Plaintiffs. At issue is the constitutionality of Va. Code Ann.

Section 18.2-391 (Michie Supp. 1999) (amended 2000), which criminalizes the dissemination of material harmful to minors over the Internet. The District Court found the statute invalid under both the First

Amendment and the Commerce Clause. For the reasons discussed

below, the District Court’s ruling granting summary judgment and

striking down the statute is AFFIRMED. 

I. Background

Plaintiffs represent a spectrum of businesses, membership organizations, and individuals who use the Internet1

 to communicate, display, and to seek access to a broad range of speech. Plaintiffs

communicate online both within and from outside the Commonwealth

of Virginia, and Plaintiffs’ speech is accessible both within and out1We do not recite here the specifics of how the Internet functions;

where necessary, we describe any relevant features of the Internet in our

analysis of this case. We note that the general contours of the Internet

have been described in various other judicial opinions. See Reno v.

ACLU, 521 U.S. 844, 849-57 (1997); Cyberspace, Communications, Inc.

v. Engler, 55 F. Supp. 2d 737, 740-44 (E.D. Mich. 1999); American

Libraries Ass’n. v. Pataki, 969 F. Supp. 160, 164-67 (S.D.N.Y. 1997);

Shea v. Reno, 930 F. Supp. 916, 925-34 (S.D.N.Y. 1996). 

PSINET, INC. v. CHAPMAN 3
side of Virginia. Plaintiffs all fear that their online speech could be

considered "harmful to juveniles" in some communities under Virginia Code section 18.2-391, despite the fact that their speech may

receive full constitutional protection as to adults. Plaintiffs facially

challenged the constitutionality of section 18.2-391 and were granted

a permanent injunction by the United States District Court for the

Western District of Virginia enjoining the enforcement of the statute.

Since 1970, Virginia has prohibited the knowing display in "brick

and mortar" space, of commercial materials that are harmful to juveniles. Va. Code Ann. § 18.2-391 (Michie Supp. 1999) (amended

2000). In 1985, Virginia amended the statute, making it also unlawful

"to knowingly display" these materials "in a manner whereby juveniles may examine and peruse" them. 1985 Va. Acts, ch. 506. Several

plaintiffs brought suit challenging the 1985 amendment as facially

unconstitutional on the grounds that it was impermissibly vague and

violated the First Amendment. After a tortuous path through the

courts, the statute was eventually upheld by the Fourth Circuit in light

of a narrowing construction accorded to the statute by the Supreme

Court of Virginia. American Booksellers Ass’n v. Virginia, 882 F.2d

125, 126 (4th Cir. 1989). 

The statute was reenacted as amended in 1999 to include electronic

files or messages, and was again reenacted as amended in 2000. The

statute in its present form makes it unlawful to "sell, rent or loan to

a juvenile" or to knowingly display for commercial purposes in a

manner whereby juveniles may examine and peruse: 

1. Any picture, photography, drawing, sculpture, motion

picture film, electronic file or message containing an image,

or similar visual representation or image of a person or portion of the human body which depicts sexually explicit

nudity, sexual conduct or sadomasochistic abuse and which

is harmful to juveniles, or

2. Any book, pamphlet, magazine, printed matter however

reproduced, electronic file or message containing words, or

sound recording which contains any matter enumerated in

subdivision 1 of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement,

4 PSINET, INC. v. CHAPMAN
sexual conduct or sadomasochistic abuse and which, taken

as a whole, is harmful to juveniles. 

Va. Code Ann. § 18.2-391 (Michie Supp. 1999) (amended 2000)

(emphasis added). A violation of section 18.2-391 is a Class I misdemeanor. 

The 2000 Amendment adds the following: 

[I]f a person uses services of an Internet service provider or

an electronic mail service provider in committing acts prohibited under this subsection, such Internet service provider

or electronic mail service provider shall not be held responsible for violating this subsection. 

Va. Code Ann. § 18.2-391 (Michie Supp. 1999) (amended 2000). The

amendment creates a defense for Internet service providers (ISPs) and

email service providers when a person violating the statute uses an

ISP or email service provider as the medium through which to disseminate prohibited material. The ISP or email service provider, however, would be liable if it disseminated the material itself as opposed

to serving as the gateway through which the material passes. 

In relation to the statute, Virginia Code section 18.2-390(6),

defines the term "harmful to juveniles" as: 

that quality of any description or representation, in whatever

form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it 

(a) predominately appeals to the prurient, shameful or

morbid interest of juveniles, 

(b) is patently offensive to prevailing standards in the

adult community as a whole with respect to what is suitable

material for juveniles, and 

(c) is, when taken as a whole, lacking in serious literary,

artistic, political or scientific value for juveniles. 

PSINET, INC. v. CHAPMAN 5
Section 18.2-390(7) defines "knowingly" as: 

having general knowledge of, or reason to know, or a belief

or ground for belief which warrants further inspection or

inquiry of both (a) the character and content of any material

described herein which is reasonably susceptible of examination by the defendant, and (b) the age of the juvenile, provided, however, that an honest mistake shall constitute an

excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such

juvenile. 

The relevant "community" whose standards govern what is harmful

is undefined, as is "commercial purpose." 

Plaintiffs filed their Complaint and Motion for Preliminary Injunction in the United States District Court for the Western District of Virginia in December of 1999. The Honorable James H. Michael, Jr.,

United States District Court Judge, granted Plaintiffs’ Motion for Preliminary Injunction by Order and Memorandum Opinion on August

10, 2000. Plaintiffs then filed a Motion for Summary Judgment Granting Final Injunction, which the District Court granted on October 11,

2001. The Commonwealth appealed the summary judgment decision.

This Court accepted the appeal and oral arguments were scheduled

on October 28, 2002. On January 21, 2003, this Court certified the

following questions of law to the Supreme Court of Virginia:

A. Would the use of any of the technological access controls identified by the Attorney General of Virginia preclude

conviction under Virginia Code § 18.2-391 as amended in

1999?

B. Does the prohibition against knowingly displaying pornographic materials that are "harmful to juveniles" apply to

displays made only in connection with the sale, rental, or

loan of such materials? If not, what must the government

establish to prove that a defendant has knowingly displayed

such material "for commercial purpose"? 

6 PSINET, INC. v. CHAPMAN
PSINet, Inc. v. Chapman, 317 F.3d 413, 419 (4th Cir. 2003). On September 12, 2003 the Supreme Court of Virginia advised this Court

that pursuant to Rule 5:42 it would not furnish answers to the certified

questions because the answers would not be outcome determinative.

The Commonwealth argues two issues on appeal. First, that American Booksellers is binding precedent in this case and therefore, the

statute should not be subject to another facial challenge. Second, that

the District Court erred in granting Plaintiffs’ Motion for Summary

Judgment and request for Final Injunction. Because we find that a

facial challenge to the statute is appropriate given the facts of this

case and that Plaintiffs were entitled to summary judgment and a final

injunction, we AFFIRM the District Court’s ruling. 

II. Analysis

A. Plaintiffs’ Facial Challenge

The Commonwealth argues that the 1999 Act did not enlarge the

scope of section 18.2-391 and that this Court’s binding precedent in

American Booksellers, precludes another facial challenge. The pre1999 version of the statute, which did not explicitly reference electronic materials, contained two "catch-all" provisions. In reference to

harmful print materials, explicitly including books, pamphlets, etc.,

the statute included the catch-all provision "however reproduced." In

reference to harmful representational materials, the statute included

the catch-all provision "or similar visual representation or image."

According to the Commonwealth, electronic materials, both print and

representational, fit comfortably within these two catch-all provisions

and the 1999 amendment merely explicitly included electronic materials that were already implicitly encompassed by the statute. 

The Commonwealth’s arguments, however, are misguided. We

agree with the District Court that a reading of section 18.2-391 illustrates that the catch-all phrases do not cover Internet material. It is

disingenuous for the Commonwealth to argue that when the 1985 version of the statute was adopted the Virginia legislature intended to

regulate the vast Internet material of today. Especially given that the

legislature felt compelled to amend the Act in 1999 to include "elecPSINET, INC. v. CHAPMAN 7
tronic file[s] or message[s] containing words . . . and . . . images." Va.

Code Ann. § 18.2-391 (Michie Supp. 1999) (amended 2000). 

General principles of statutory construction require a court to construe all parts to have meaning and to reject constructions that render

a term redundant. See Reiter v. Sonotone Corp., 442 U.S. 330, 339

(1979) (where the Supreme Court explained that a court is "obliged

to give effect, if possible, to every word"); Platt v. Union Pacific R.R.

Co., 99 U.S. 48, 58-59 (1878) (if a construction renders a term redundant, that is a reason for rejecting that construction); Virginia v.

Browner, 80 F.3d 869, 877 (4th Cir. 1996) (a court should not "construe a statute in a manner that reduces some of its terms to mere surplusage"); United States v. Snider, 502 F.2d 645, 652 (4th Cir. 1974)

(all parts of a statute must be construed so that each part has meaning); McLean Bank v. Nelson, 232 Va. 420, 427, 350 S.E.2d 651, 656

(1986) (Virginia statutory interpretation requires that all words of a

statute be given meaning where possible). The Virginia legislature’s

decision to amend section 18.2-391 to include electronic communications was not a redundant act simply including an area already covered by the Act, but was an affirmative step making the Act

applicable to Internet communication. Thus the amendment was

clearly a purposeful extension of the Act to a new area of communication, and Plaintiffs may facially challenge the Acts constitutionality

as reenacted. 

Furthermore, this Court’s decision in American Booksellers does

not preclude Plaintiffs’ facial challenge. In American Booksellers v.

Virginia, 882 F.2d 125 (4th Cir. 1989) this Court only considered

whether non-obscene adult materials could be displayed and sold to

adults in stores so long as sellers did not "knowingly afford [ ] juveniles an opportunity to peruse harmful materials." Id. at 127. After the

Supreme Court of the United States certified questions to the Supreme

Court of Virginia, this Court concluded that the 1985 Act merely

required booksellers to segregate a few works onto a shelf located

where bookstore personnel would notice inappropriate juvenile interest while carrying out their regular duties. See id. at 127. 

Moreover, this Court’s First Amendment analysis in American

Booksellers dealt with traditional bookstores at physical locations and

does not apply to the "unique and wholly new medium of worldwide

8 PSINET, INC. v. CHAPMAN
human communication" that is the Internet. Reno, 521 U.S. at 850.

Nor does selling adult books and magazines in a fixed location raise

the Commerce Clause concerns that state regulation of the Internet

raises. See Jack L. Goldsmith & Alan O. Sykes, The Internet and the

Dormant Commerce Clause, 110 Yale L.J. 785, 824 (2001). 

One facial challenge of a statute does not preclude another challenge of an amended statute on different grounds. Plaintiffs were permitted to bring a facial challenge of Virginia Code section 18.2-391

(Michie Supp. 1999) as amended and the District Court’s decision

enjoining section 18.2-391 was proper. 

B. The District Court’s Grant of Summary Judgment

On October 11, 2001, the District Court granted Plaintiffs’ Motion

for Summary Judgment and entered a Final Injunction against the

enforcement of section 18.2-391. A motion for summary judgment

should be granted only if there is no genuine dispute as to an issue

of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). All facts and reasonable inferences must be

interpreted in the light most favorable to the non-moving party. See

Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990). However,

summary judgment is appropriate "where the facts and the law will

reasonably support only one conclusion." Hawkins v. PepsiCo, Inc.,

203 F.3d 274, 279 (4th Cir. 2000)(quoting McDermott Int’l, Inc. v.

Wilander, 498 U.S. 337, 356 (1991)). This Court reviews the grant or

denial of summary judgment de novo. Hodge v. Jones, 31 F.3d 157,

163 (4th Cir. 1994). In that the undisputed material facts and law reasonably support only one conclusion in the case at hand, we AFFIRM

the District Court’s grant of summary judgment. 

1. First Amendment Analysis

The District Court held that in seeking to restrict the access of

minors to indecent material on the Internet, section 18.2-391 imposes

an unconstitutional burden on protected adult speech. As a contentbased restriction on expression, the statute may only be upheld if it

survives strict scrutiny. United States v. Playboy Entertainment

Group, Inc., 529 U.S. 803 (2000) (applying strict scrutiny to a law

PSINET, INC. v. CHAPMAN 9
restricting explicit programming); Reno I, 521 U.S. at 870 (applying

strict scrutiny to regulation of Internet speech). Strict scrutiny requires

the law in question to be 1) narrowly tailored to 2) promote a compelling government interest. Playboy, 529 U.S. at 813. 

The government has the burden of showing that a content-based

regulation of speech "is necessary to serve a compelling state interest." First Nat’l Bank v. Bellotti, 435 U.S. 765, 786, 788-89 (1978).

It is clear that the government’s interest in protecting minors from

sexually explicit Internet materials is compelling. See Ginsberg v.

New York, 390 U.S. 629, 639 (1968) (recognizing New York’s compelling interest in limiting the availability of sexual material to

minors); FCC v. Pacifica Found., 438 U.S. 726, 749 (1978) (recognizing the government’s interest in limiting the broadcast of offensive

words dealing with sex that was accessible to children). The question

then becomes whether the Act is narrowly tailored so that it may pass

strict scrutiny. 

Both sides concede that the 1999 Act is not narrowly tailored if it

effects a total ban on the display of all "electronic file[s] or message[s]," containing "harmful" words, images or sound recordings,

that juveniles may "examine and peruse," as the plain language of the

statute seems to indicate. See Va. Code Ann. § 18.2-391 (Michie

Supp. 1999) (amended 2000). To save the statute from unconstitutionality the Commonwealth proposes certain statutory interpretations.

However, even with the Commonwealth’s creative constructions, the

statute remains unconstitutionally overbroad or becomes impotent and

thus unconstitutional under the First Amendment. 

The Constitution provides significant protection "from overbroad

laws that chill speech within the First Amendment’s vast and privileged sphere." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244

(2002). Under the doctrine of overbreadth, a statute violates the First

Amendment if it prohibits a substantial amount of protected expression. Id. In that section 18.2-391 penalizes a substantial amount of

speech that is constitutionally protected, it violates the First Amendment. 

Several courts have struck down general bans and blanket restrictions on Internet speech deemed harmful to juveniles as unconstitu10 PSINET, INC. v. CHAPMAN
tionally overbroad. The Commonwealth suggests that we interpret

section 18.2-391 as regulating only Internet speech occurring within

the Commonwealth of Virginia. However, other statutes with that

same geographic restriction have been struck down as impermissibly

chilling to protected speech. See generally, American Libraries Ass’n.

v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). Attempting to localize

Internet regulation is extremely problematic because the Internet "by

its nature has no local areas." Charles Nesson & David Marglin, The

Day the Internet Met the First Amendment: Time and the Communications Decency Act, 10 Harv. J.L. & Tech. 113, 131 (1996). 

Other courts have explained that:

[A]n Internet user cannot foreclose access to her work from

certain states or send differing versions of her communication to different jurisdictions. In this sense, the Internet user

is in a worse position than the truck driver or train engineer

who can steer around Illinois or Arizona, or change the

mudguard or train configuration at the state line; the Internet

user has no ability to bypass any particular state. The user

must thus comply with the regulation imposed by the state

with the most stringent standard or forego Internet communication of the message that might or might not subject her

to prosecution. 

Pataki, 969 F. Supp. at 183. In fact, based on the pleadings of the parties and the findings of other federal courts, the District Court found

that for "most communications over the Internet, the speaker has little

or no effective control over whether minors or adults are able to gain

access to his communications." Dist. Ct. Op. J.A. at 298 (citing Reno,

521 U.S. at 855-56). The District Court found that "speakers who

publish on the Web generally make their materials publicly available

to users around the world, regardless of age, and lack any practical

or reliable means for preventing minors from gaining access to the

information on their sites or for verifying the true age of users of their

Web sites." Id. The District Court went further to explain that the

Internet is:

[W]holly insensitive to geographic distinctions, and Internet

protocols were designed to ignore rather than to document

PSINET, INC. v. CHAPMAN 11
geographic location. While computers on the Internet do

have "addresses," they are addresses on the network rather

than geographic addresses in real space. Most Internet

addresses contain no geographic information at all. An

Internet user who posts a Web page in one state cannot readily prevent residents of other states from viewing that page,

or even discern in which state visitors to the site reside.

Dist. Ct. Op. J.A. at 298 (citing Pataki, 969 F. Supp. at 170). In that

Internet speakers have no way of preventing Virginia juveniles from

accessing their Internet speech, the "severity of criminal sanctions

may well cause speakers to remain silent rather than communicate

even arguably unlawful words, ideas, and images." Reno, 521 U.S. at

872. In an attempt to deny minors access to potentially harmful

speech, section 18.2-391 will "effectively suppress[ ] a large amount

of speech that adults have a constitutional right to receive and to

address to one another." Id. at 874. Individuals who wish to communicate images that might fall within the statute’s proscriptions must

thus self-censor or risk prosecution. It is this type of regulation, of

otherwise protected speech, that other courts have consistently struck

down as unconstitutional. 

The Commonwealth asks the Court to read other propositions into

section 18.3-391 under the guise of narrowing constructions. The

Commonwealth suggests that section 18.2-391 be read as providing

a defense when a Web site requires an adult PIN number for access.

Under the Commonwealth’s construction of section 18.2-391, a

Web site employing a security screen requiring an adult PIN will be

immune from prosecution. These PINs can be obtained through adult

PIN registration services online, or the Web site could distribute PINs

itself. An adult would obtain a PIN by providing a credit card number

to the service.2 Dist. Ct. Op. J.A. at 13-14. 

2

It is assumed only adults will have credit cards because only adults

are contractually obligated to pay back credit card charges. But see,

Reno, 521 U.S. at 881-82 (where the Supreme Court questioned the

validity of a PIN number defense because the appellants failed to establish that a PIN number system would adequately screen out juveniles).

12 PSINET, INC. v. CHAPMAN
The Commonwealth argues that an affirmative defense for PIN

numbers must be read into section 18.2-391 in light of the Supreme

Court of Virginia’s previous narrowing construction in Commonwealth v. American Booksellers Ass’n., 236 Va. 168, 178, 372 S.E.2d

618, 624-25 (1988). The Supreme Court of Virginia explained that to

prove a violation under section 18.2-391, in the context of a physical

bookstore, "the Commonwealth would have the burden of proving

beyond a reasonable doubt that the defendant bookseller knowingly

afforded juveniles an opportunity to peruse harmful materials, or took

no reasonable steps to prevent such perusal when the juvenile’s

opportunity was reasonably apparent to the bookseller." Id. (emphasis

in original). The Commonwealth is persuaded and urges upon the

Court that the language, "reasonable steps to prevent such perusal,"

in the 1988 American Booksellers decision should be construed as

allowing an affirmative PIN number defense to the 1999 amendment

of the Act. 

The general principle is that "every reasonable construction must

be resorted to, in order to save a statute from unconstitutionality."

Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const.

Trades Council, 485 U.S. 568, 575 (1988). However, only if a statute

is "readily susceptible" to a narrowing construction will the court

apply such a construction to save an otherwise unconstitutional law.

Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 397

(1988). The Supreme Court has explained that narrowing constructions are only appropriate when "the text or other source of congressional intent" identifies a clear line that a court could draw. Reno, 521

U.S. at 884. Courts must be careful not to invade upon the legislative

domain and a court should never "rewrite a law to conform it to constitutional requirements." See Reno, 521 U.S. at 884-85. 

The Commonwealth’s PIN number defense is not "readily susceptible" from the text or any other source of congressional intent. Such

a reading adding an affirmative PIN number defense might be possible if not for the Virginia legislature’s decision to explicitly state the

defenses applicable to section 18.2-391. In 2000, just one year after

it enacted the language making section 18.2-391 applicable to Internet

communication, the Virginia legislature went back and amended section 18.2-391 to explicitly add the one defense that it intended to

include. The 2000 amendment limits the liability of ISPs and email

PSINET, INC. v. CHAPMAN 13
service providers who simply serve as a medium through which an

offender disseminates prohibited material, but says nothing regarding

the liability of commercial Web sites that use PIN numbers. Va. Code

Ann. § 18.2-391 (Michie Supp. 1999) (amended 2000). 

Furthermore, using the Supreme Court of Virginia’s language in

American Booksellers, there is no indication that the use of a PIN

number would be considered a "reasonable step" to prevent "reasonably apparent" perusal by juveniles. As the Plaintiffs have previously

pointed out, the Commonwealth would certainly not agree that a

liquor or tobacco store that sold to anyone with a valid credit card

number, without some additional step to ascertain the age of the customer, was taking reasonable steps to exclude juveniles from the purchase of age prohibitive products. Other courts have questioned both

the reasonableness and effectiveness of credit card verification, and

there is no indication that the Virginia legislature intended to adopt

PIN number verifications as an affirmative defense to section 18.2-

391. This Court has no authority to include an affirmative defense to

section 18.2-391 where the Virginia legislature has given no indication (explicit or implicit) that it intended to include said defense. 

Finally, the Commonwealth’s PIN number solution to the statute’s

First Amendment problems creates First Amendment problems of its

own. The District Court explained that the stigma associated with the

content of these Internet sites may deter adults from visiting them if

they cannot do so without the assurance of anonymity. The Court

pointed out that many adults may be unwilling to provide their credit

card number online, and would therefore not visit the site. Such a

restriction would also serve as a complete block to adults who wish

to access adult material but do not own a credit card. Such requirements would unduly burden protected speech in violation of the First

Amendment.3

3The dissent cites to Ashcroft v. ACLU, 535 U.S. 564, 583 n. 14

(2002), for the proposition that the Supreme Court has recognized "adult

identification screens" as a feasible Internet alternative. The Court in

Ashcroft, however, focused exclusively on the use of "community standards" to screen "obscene" Internet speech, an area that falls outside the

purview of the First Amendment. The Court in Ashcroft explicitly stated

that it did not "express any view" as to whether the Child Online Protection Act, and its use of adult identification screens, would survive a strict

scrutiny analysis. Ashcroft, 535 U.S. at 585-86. 

14 PSINET, INC. v. CHAPMAN
The District Court was correct in its conclusion that requiring adult

Web sites to utilize PIN numbers would unconstitutionally chill free

speech. In that the Commonwealth’s proposed construction would

still render section 18.2-391 unconstitutional under the First Amendment, it would make no sense for this Court to adopt that construction. 

The Commonwealth also asks this Court to construe section 18.2-

391 in a manner that would virtually exempt bulletin boards and chat

rooms from its regulations. The Commonwealth correctly points out

that the 2000 amendment to section 18.2-391 limits the liability of

service providers who do nothing more than set up the Internet chat

room or bulletin board. See Va. Code Ann. § 18.2-391 (Michie Supp.

1999) (amended 2000). The amendment does not, however, exempt

the speakers who post material in chat rooms and on bulletin boards.

The Commonwealth admits that individual speakers who post messages in chat rooms or on bulletin boards for "commercial purposes"

will still be subject to regulation under section 18.2-391. The Commonwealth seems to suggest that the number of Internet users

engaged in this type of speech is so small that a ban on this commercial speech in these forums is permissible.4

 However, the number of

individuals engaged in a particular type of speech is not determinative

of whether First Amendment protections must be afforded to that type

of speech. 

As the District Court pointed out, participants in online chat rooms

and discussion groups have no way to tell when participants from

another state join the conversation or whether that participant is a

minor. Dist. Ct. Op. J.A. at 299. As such, speakers could never

engage in commercial adult speech in these types of forums without

subjecting themselves to the possibility of criminal liability. In

essence, speech that receives complete protection as to adults could

never be engaged in unless the particular chat room or bulletin board

completely banned juveniles.5 Furthermore, banning juveniles from

4The Commonwealth makes this argument in spite of the fact that the

term speech for "commercial purposes" remains undefined by section

18.2-391. 

5The Commonwealth has been unable to suggest any equivalent to the

adult verification measures currently available to commercial Web site

operators that could be utilized by individuals wishing to engage in protected commercial speech in chat rooms or on bulletin boards. 

PSINET, INC. v. CHAPMAN 15
these particular formats would prevent them from accessing the beneficial materials, i.e. non-sexually explicit materials, they contain. By

the Commonwealth’s own admission, section 18.2-391 cannot be construed in a way that completely exempts chat rooms and bulletin

boards. The blanket prohibition of adult commercial speech that the

statute imposes violates the First Amendment. 

Even if the Court completely construed section 18.2-391 in the

manner that the Commonwealth requests, such a construction would

leave the Act virtually powerless. When the government defends a

regulation of speech as a means to redress past harms or prevent

anticipated harms, it must do more than simply "posit the existence

of the disease sought to be cured." Turner Broad. Sys. v. F.C.C., 512

U.S. 622, 664 (1994) (quoting Quincy Cable TV, Inc. v. FCC, 768

F.2d 1434, 1455 (D.C. Cir. 1985)). "It must demonstrate that the

recited harms are real, not merely conjectural, and that the regulation

will in fact alleviate these harms in a direct and material way." Id. at

624; see also Edenfield v. Fane, 507 U.S. 761, 770-71

(1993)(explaining that the burden is on the party seeking to uphold a

restriction on commercial speech to "demonstrate that the harms it

recites are real and that its restriction will in fact alleviate them to a

material degree"); Los Angeles v. Preferred Communications, Inc.,

476 U.S. 488, 496 (1986) (explaining that a "[c]ourt may not simply

assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgment of expressive activity").

Where strict scrutiny applies, a statute that "leaves appreciable damage to th[e] supposedly [compelling] interest" uncorrected is invalid.

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 547 (1993) (internal citations omitted). Even commercial speech

regulation "may not be sustained if it provides only ineffective or

remote support for the government’s purpose." Central Hudson Gas

& Electric Corp. v. Public Service Comm’n of N.Y., 447 U.S. 557,

564 (1980). 

In order to avoid being too burdensome on protected speech, the

statute cannot, by the Commonwealth’s own admission, protect Virginia juveniles from foreign or out-of-state Internet materials, regulate

non-commercial Internet materials, or regulate materials posted on

bulletin boards or in chat rooms. Given the nature of the Internet, such

a construction would leave section 18.2-391 virtually powerless. In

16 PSINET, INC. v. CHAPMAN
the District Court’s findings, it explained that "Communications on

the Internet do not ‘invade’ an individual’s home or appear on one’s

computer screen unbidden. Rather, the receipt of information

‘requires a series of affirmative steps more deliberate and directed

than merely turning a dial.’" Dist. Ct. Op. J.A. at 296 (quoting Reno,

521 U.S. at 854). As the District Court noted at oral argument, there

is no benefit to a law which merely reduces the number of pornographic responses to an Internet search by a juvenile from 186,000

responses to 183,000 responses (hypothetically). J.A. at 908. 

There is no indication that technology exists to track Web sites or

Web site users in a manner that would give section 18.2-391 any bite.

There is also no indication that a significant amount of harmful material available to juveniles in Virginia originates within the Commonwealth or comes from individuals who would be subject to the

Commonwealth’s jurisdiction.6 Furthermore, section 18.2-391 only

regulates commercial Web sites, leaving a significant number of

equally harmful, non-commercial Web sites, that could be screened

by current Internet filtering technology, un-regulated. See J.A. at 447.

In essence, the Commonwealth has failed to demonstrate in any

way that section 18.2-391 passes Constitutional muster. Using the

plain language of section 18.2-391 and banning the display of all

"electronic file[s] or message[s]," containing "harmful" words, images

or sound recordings, that juveniles may "examine and peruse," is not

a narrowly tailored solution and is unconstitutionally overbroad. On

the other hand, using the proposed narrowing constructions renders

section 18.2-391 powerless and therefore constitutes an impermissible

regulation of speech under the First Amendment. See Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546

(1993). Under either approach, section 18.2-391 unconstitutionally

chills free speech and therefore violates the First Amendment. 

6

See ACLU v. Reno, 929 F. Supp. 824, 882-83 (E.D. Pa. 1996)

(explaining that "[n]early half of Internet communications originate outside the United States, and some percentage of that figure represents pornography," and that "[p]ornography from, say, Amsterdam will be no

less appealing to a child on the Internet than pornography from New

York City, and residents of Amsterdam have little incentive to comply

with the CDA.") 

PSINET, INC. v. CHAPMAN 17
2. Commerce Clause Analysis

Not only may the District Court’s decision be upheld based on section 18.2-391’s violation of the First Amendment, the decision may

be upheld on the separate ground that the statute violates the Commerce Clause. The negative implication of the Commerce Clause (the

Dormant Commerce Clause), U.S. Const. Art. I., § 8, cl. 3, includes

a prohibition on state regulation that "discriminates against or unduly

burdens interstate commerce and thereby imped[es] free private trade

in the national marketplace." General Motors Corp. v. Tracy, 519

U.S. 278, 287 (1997) (quoting Reeves, Inc. v. Stake, 447 U.S. 429,

437 (1980)). Several courts have struck down state statutes similar to

Virginia Code section 18.2-391 as unduly burdensome on interstate

commerce because they, in effect, restrict commercial electronic

materials in all states, not just the state in which the statute was

enacted. For example, in American Libraries Ass’n v. Pataki, 969 F.

Supp. 160 (S.D.N.Y. 1997), the District Court found that because

there was no effective way to limit access to online materials by geographic location, a Web site owner operating legally in California

would have to comply with New York’s law to avoid being subject

to liability there. Id. at 174. This may deter the California Web site

from placing its material on the Internet, thereby affecting legitimate

commerce outside of New York. At the least, the California Web site

would have to incur the expense of complying with New York’s law

if it were willing to post the materials at all (because materials accessible online in California are equally accessible online in New York).

Adopting the rationale of Pataki, the District Court rejected the

Commonwealth’s arguments and analyzed section 18.2-391 as a

direct regulation of interstate commerce. The Commonwealth attacks

the conclusion reached by the District Court and argues that the statute should be construed narrowly to comply with the Dormant Commerce Clause. The Commonwealth argues that it should "be

presumed . . . that a legislative body . . . did not intend to give its

enactments an impermissible extra-territorial operation." 82 C.J.S.

Statutes § 310. The Commonwealth argues that the statute must be

read not to have an impermissible effect unless the language of the

statute makes such a reading impossible. See Planned Parenthood v.

Camblos, 155 F.3d 352, 383 (1998). 

18 PSINET, INC. v. CHAPMAN
The Commonwealth asserts that through such a narrow construction the statute would not govern the "broad array of out-of-state Web

sites" that have no contact with Virginia "other than being accessible

here." The logical conclusion of this argument is that the statute

would only govern Web sites based in-state or Web sites with some

other form of sufficient contacts with Virginia more substantial than

merely being accessible here. The Commonwealth does not specify

what those types of contacts might be. 

As the District Court pointed out, the nature of the Internet itself

makes the Commonwealth’s proposed construction nearly impossible.

"The unique nature of the Internet highlights the likelihood that a single actor might be subject to haphazard, uncoordinated, and even outright inconsistent regulation by states that the actor never intended to

reach and possibly was unaware were being accessed." Pataki, 969 F.

Supp. at 168. Given the broad reach of the Internet, it is difficult to

see how a blanket regulation of Internet material, such as section

18.2-391, can be construed to have only a local effect. See Reno, 521

U.S. at 887-95 (Justice O’Connor, concurring in part and dissenting

in part) (discussing the difficulty in applying principles of zoning law

to the Internet). 

However, even if the Commonwealth’s limiting construction were

applied, the Act would nonetheless be an invalid indirect regulation

of interstate commerce because the burdens it imposes on interstate

commerce are excessive in relation to the local benefits it confers. In

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), the Supreme Court

set forth the balancing test applicable to indirect regulations of interstate commerce. The two-fold inquiry first looks at the legitimacy of

the state’s interest and secondly weighs the burden on interstate commerce in light of the local benefit derived from the statute. Pike, 397

U.S. at 142. There is no question that Virginia has a compelling interest in protecting the physical and psychological well-being of minors.

The local benefits of such a statute, however, have not been proven.

By construing the Act so that it only reaches intrastate communication, the Commonwealth again finds itself in the same conundrum as

it did in its First Amendment analysis. If the Commonwealth is capable of limiting its Internet regulation as not to directly offend the

Commerce Clause, then it will have no local benefit given the vast

PSINET, INC. v. CHAPMAN 19
number of other communication options available to a juvenile seeking them. 

Even if section 18.2-391 can be construed in a manner that does

not directly violate the Commerce Clause, the statute still fails under

the Dormant Commerce Clause analysis of Pike v. Bruce Church. The

District Court was correct in granting Plaintiffs’ Motion for Summary

Judgment because section 18.2-391 violates the Commerce Clause. 

III. Conclusion

The content of the Internet is analagous to the content of the night

sky. One state simply cannot block a constellation from the view of

its own citizens without blocking or affecting the view of the citizens

of other states. Unlike sexually explicit materials disseminated in

brick and mortar space, electronic materials are not distributed piecemeal. The Internet uniformly and simultaneously distributes its content worldwide. As the District Court noted, there may some day be

sufficient technology to render this statute constitutional. However, in

light of current technology, the statute cannot be reasonably construed

to meet both First Amendment and Commerce Clause challenges. The

District Court was correct in granting Plaintiffs’ Motion for Summary

Judgment and granting a permanent injunction against section 18.2-

391. Therefore, the District Court’s decision is hereby 

AFFIRMED.

DAVIS, District Judge, concurring: 

Indubitably, as all agree, government has a compelling interest in

protecting children from harm. Were I participating in this case as the

doting grandfather that I am proud to be, I would eagerly embrace the

result reached by the dissent. Shedding my familial role, however, as

I must, for my proper role as judge, I am pleased to join Judge Spencer’s opinion. 

The Commonwealth’s contention that a facial challenge to the

amended statute is foreclosed on the basis of stare decisis is a legal

formalism that I find wholly unpersuasive. For the reasons stated in

20 PSINET, INC. v. CHAPMAN
the majority opinion, it simply could not be more clear that the Virginia legislature amended the statute exactly because the prior law did

not reach electronic media. I do not believe resolution of the compelling overbreadth claims asserted by plaintiffs in this case can or

should be avoided in this way. 

On the merits, the majority opinion is unwaveringly faithful to

extant First Amendment and Commerce Clause principles. Perhaps it

is true, as Justice Holmes famously stated, that hard cases sometimes

make bad law, and certainly, as we all know, rapid advances in technology sometimes make hard cases. E.g., Kyllo v. United States, 533

U.S. 27 (2001)(holding that use of a thermal imaging device to measure heat escaping from a residence constitutes a search of the residence); Ashcroft v. Free Speech Coalition, 535 U.S. 234

(2000)(finding unconstitutional certain provisions of the Child Pornography Prevention Act of 1996, 18 U.S.C. §§ 2251 et seq.). But the

majority opinion makes no law at all, good or bad. Rather, it simply

applies settled law to new facts, and it does so in a manner that is consonant with and well within the boundaries of the judicial function.

It is no answer to the plaintiffs’ claims that, to achieve its assuredly

compelling interest in protecting children from exposure to online

pornography, Virginia has done the best that available technological

know-how allows. In a related context, the Supreme Court has cautioned that "[t]he Government may not suppress lawful speech as the

means to suppress unlawful speech. Protected speech does not

become unprotected merely because it resembles the latter." Id. at

255. Similarly, the online dissemination of protected speech may not

be criminalized (a surefire form of suppression) merely because such

speech might be accessible to Virginia’s inadequately-supervised

minors. Thus, Virginia’s effort to do for parents and guardians what

they— without the constraints imposed by constitutional prohibitions

— are free (and better able) to do for themselves, fails. Nor may Virginia reach beyond her border to suppress online speech everywhere,

even if such an attempt had any plausible prospects of success, which

of course it does not. 

It may be that the Supreme Court will one day undertake the task

of creating a new metric of speech protection for the "Age of the

Internet," but it has not done so to date. Accordingly, I fully concur

in the opinion affirming the judgment of the district court. 

PSINET, INC. v. CHAPMAN 21
NIEMEYER, Circuit Judge, dissenting: 

Acting under its police powers, the Commonwealth of Virginia

enacted Virginia Code § 18.2-391 making it unlawful "to knowingly

display for commercial purpose" pornographic materials that are

harmful to juveniles "in a manner whereby juveniles may examine

and peruse" them. Va. Code Ann. § 18.2-391(a) (1985). Materials

were designated to include any visual representation or image, any

printed matter however reproduced, and any sound recording. Id.

In 1988, the Supreme Court of Virginia construed the scope of this

statute narrowly, see Commonwealth v. Am. Booksellers Ass’n, Inc.,

372 S.E.2d 618 (Va. 1988), and based on this narrow construction, we

held the statute to be constitutional against a First Amendment challenge, see Am. Booksellers Ass’n, Inc. v. Virginia, 882 F.2d 125, 127-

28 (4th Cir. (1989) (concluding that the statute "places a minimal burden on booksellers and represents a constitutionally permissive exercise of the state’s police powers"), cert. denied, Virginia v. Am.

Booksellers Ass’n, Inc., 494 U.S. 1056 (1990). 

Virginia amended § 18.2-391 in 1999 to make it explicit that the

specified examples of visual, written, and recording media that were

regulated included any "electronic file or message." Va. Code Ann.

§ 18.2-391(A) (1999). 

This action was commenced to mount a renewed facial First

Amendment challenge to this statute, as amended in 1999. On plaintiffs’ motion for summary judgment, the district court held that the

statute violated the First Amendment, as well as the dormant Commerce Clause, of the U. S. Constitution, and permanently enjoined

enforcement of the statute in the electronic medium. On appeal, the

majority now affirms. 

For the reasons that follow, I disagree and therefore respectfully

dissent. First, we rejected a facial First Amendment challenge to this

statute in American Booksellers, 882 F.2d 125, and that ruling now

binds us in this case, compelling us to uphold the constitutionality of

the statute against this second facial challenge. Second, even if we

conduct the First Amendment analysis again, I would find the statute

constitutional because (1) Virginia has a compelling interest in pro22 PSINET, INC. v. CHAPMAN
tecting its juveniles from harmful pornographic materials, (2) the Virginia statute employs the least restrictive alternative that will promote

Virginia’s interest, especially in view of the Virginia Supreme Court’s

authoritative construction of the statute, and (3) by application of

minimally burdensome technology that is now available, no speech

among adults is suppressed. I would also conclude that the statute

does not violate the dormant Commerce Clause. Accordingly, I would

reverse the judgment of the district court and vacate the injunction

that the district court entered against enforcement of Virginia Code

§ 18.2-391. 

I

When first enacted in 1970, Virginia Code § 18.2-391 applied only

to the sale, rental, or loan of pornographic material deemed "harmful

to juveniles." Virginia modeled its statute on a New York statute

upheld against a First Amendment challenge by the Supreme Court

in Ginsberg v. New York, 390 U.S. 629 (1968). 

In 1985, Virginia amended § 18.2-391 to prohibit not only the sale,

rental, or loaning of material deemed "harmful to juveniles," but also

to the knowing display of such materials for commercial purpose. In

amended form, the statute provided: 

(a) It shall be unlawful for any person knowingly to sell,

rent or loan to a juvenile, or to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse: 

1. Any picture, photography, drawing, sculpture, motion

picture film, or similar visual representation or image of a

person or portion of the human body which depicts sexually

explicit nudity, sexual conduct or sadomasochistic abuse

and which is harmful to juveniles, or 

2. Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any

matter enumerated in subdivision (1) of this subsection, or

explicit and detailed verbal descriptions or narrative

PSINET, INC. v. CHAPMAN 23
accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to

juveniles. 

Va. Code Ann. § 18.2-391(a) (emphasis added to identify statutory

language inserted by amendment) ("1985 Version"). 

The 1985 Version of the statute became the subject of a First

Amendment challenge that produced five opinions by the U.S.

Supreme Court, the Supreme Court of Virginia, and our court, but in

the end it was held not to violate the First Amendment. 

When we first reviewed the 1985 Version of the statute, conducting

a review of a facial challenge, we held that the 1985 Version "discourage[d] the exercise of first amendment rights in a real and substantial fashion, in that it [was] not readily subject to a narrowing

interpretation so as to withstand an overbreadth challenge." Am.

Booksellers Ass’n, Inc. v. Virginia, 802 F.2d 691, 696 (4th Cir. 1986)

("American Booksellers I"). Although Virginia stressed that "only a

small percentage of the inventory in book stores could be classified

as harmful to juveniles" and therefore that "retail outlets [could] readily modify their display methods to comply with the amendment," we

rejected Virginia’s characterizations. Id. We ruled that "[t]he display

methods suggested by the Commonwealth appear[ed] either insufficient to comply with the amendment or unduly burdensome on the

first amendment rights of adults . . . ." Id. We reasoned that "[p]lacing

‘adults only’ tags on books and magazines or displaying the restricted

material behind blinder racks or on adults only shelves freely accessible in the main part of the store would not stop any determined juvenile from examining and perusing the materials." Id. Further,

"[f]orcing a bookseller to create a separate, monitored adults only section, requiring that the materials be sealed, or taking the materials off

display and keeping them ‘under the counter’ unreasonably interfere[d] with the booksellers’ right to sell the restricted materials and

the adults’ ability to buy them." Id.

On review, the U.S. Supreme Court concluded that the Virginia

Supreme Court’s construction of the statute might better determine

the statute’s constitutionality: "[A]n authoritative construction of the

Virginia statute by the Virginia Supreme Court would substantially

24 PSINET, INC. v. CHAPMAN
aid our review of [the] constitutional holding, and might well determine the case entirely." Virginia v. Am. Booksellers Ass’n, Inc., 484

U.S. 383, 386 (1988). The Court accordingly certified two questions

regarding interpretation of the 1985 Version to the Supreme Court of

Virginia, pursuant to Rule 5:42 of the Virginia Supreme Court. Id. at

398. Focusing on the scope of the law’s coverage, the United States

Supreme Court asked in its first question:

Does the phrase "harmful to juveniles" as used in Virginia

Code §§ 18.2-390 and 18.2-391 (1982 and Supp. 1987),

properly construed, encompass any of the books introduced

as plaintiffs’ exhibits below, and what general standard

should be used to determine the statute’s reach in light of

juveniles’ differing ages and levels of maturity?

Id. at 398. Virginia argued that none of the 16 books that were submitted by the plaintiffs as books covered by the statute were in fact

covered by the statute. It maintained that the reach of the statute was

much narrower. Id. at 393-94. The U.S. Supreme Court noted that

"[i]f that is true, methods of compliance exist that are substantially

less burdensome than those discussed by the lower courts." Id. at 394.

The Court concluded that "it is essential that we have the benefit of

the law’s authoritative construction from the Virginia Supreme

Court." Id. at 395. 

In the second question, the U.S. Supreme Court focused on what

compliance measures potential defendants could take to avoid running

afoul of the law’s prohibition. Accordingly, the Supreme Court posed

as its second question:

What meaning is to be given to the provision of Virginia

Code § 18.2-391(a) (Supp. 1987) making it unlawful "to

knowingly display for commercial purpose in a manner

whereby juveniles may examine or peruse" certain materials? Specifically, is the provision complied with by a plaintiff bookseller who has a policy of not permitting juveniles

to examine and peruse materials covered by the statute and

who prohibits such conduct when observed, but otherwise

takes no action regarding the display of restricted materials?

PSINET, INC. v. CHAPMAN 25
If not, would the statute be complied with if the store’s policy were announced or otherwise manifested to the public?

484 U.S. at 398. Whereas the plaintiffs alleged that compliance with

the law would require drastic measures such as reconfiguring the store

or completely barring minors from the store, Virginia argued that "a

bookseller will not be subject to criminal prosecution if, as a matter

of store policy, the bookseller prevents a juvenile observed reviewing

covered works from continuing to do so, even if the restricted materials are not segregated." Id. at 396. The U.S. Supreme Court explained

the importance of the second question: "If this is what the statute

means, the burden to the bookseller, and the adult book buying public,

is significantly less than that feared and asserted by plaintiffs." Id. at

397. 

The Supreme Court of Virginia accepted the certified questions and

responded to the first question, applying the three-part test set forth

in the statute, Va. Code Ann. § 18.2-390(6), defining the term "harmful to juveniles."* Commonwealth v. Am. Booksellers Ass’n, Inc., 372

S.E.2d 618 (Va. 1988). As to the first two prongs of the test, the court

recognized that they presented questions of fact for determination by

a properly instructed jury. Id. at 623. The third prong, however, was

found to involve a mixed question of law and fact that the court could

properly decide. Id. The court concluded that "if a work is found to

have a serious literary, artistic, political or scientific value for a legitimate minority of normal, older adolescents, then it cannot be said to

lack such value for the entire class of juveniles taken as a whole." Id.

at 624. The Virginia court then concluded that none of the books submitted by the plaintiffs as exhibits lacked serious literary, artistic,

*Quoting Virginia Code § 18.2-390(6): 

"Harmful to juveniles" means that quality of any description or

representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (a) predominantly appeals to the prurient, shameful or morbid interest of

juveniles, (b) is patently offensive to prevailing standards in the

adult community as a whole with respect to what is suitable

material for juveniles, and (c) is, when taken as a whole, lacking

in serious literary, artistic, political or scientific value for juveniles. 

26 PSINET, INC. v. CHAPMAN
political, or scientific value for a legitimate minority of older, normal

adolescents, and thus none of the books were "harmful to juveniles"

within the meaning of Va. Code Ann. § 18.2-390(6). Id.

The Supreme Court of Virginia also provided a narrow construction of the 1985 Version in responding to the certified question focusing on compliance measures. The court explained that the scienter

requirement in the statute was significant:

A violation must consist of proof beyond a reasonable doubt

that [1] the bookseller knowingly afforded juveniles an

opportunity to peruse harmful materials in his store or, [2]

being aware of facts sufficient to put a reasonable person on

notice that such opportunity existed, took no reasonable

steps to prevent the perusal of such materials by juveniles.

372 S.E.2d at 625. Again, the court stated, "[r]easonable efforts to

prevent perusal of harmful materials by juveniles are all that the statute requires of a bookseller." Id. According to the Virginia court,

"[t]he question whether a bookseller’s efforts were reasonable, in any

given set of circumstances is, of course, an issue of fact to be resolved

by a properly-instructed jury, but certain general principles may be

discerned." Id. The court then provided "a clear example of a method

a bookseller might easily adopt" to avoid violating the statute. Id. If

a bookseller placed all restricted books on a shelf in the sight of the

bookseller and intervened whenever a juvenile attempted to peruse

and examine books on that shelf, then the bookseller would be in

compliance with the statute. Id. Finally, with the assumption that "the

hypothetical bookseller ‘who has a policy of not permitting juveniles

to examine and peruse materials covered by the statute’ does not

merely cerebrate upon such a policy, but takes reasonable steps to put

it into effect," the court answered the second certified question in the

affirmative. Id. According to the Virginia Supreme Court, the 1985

Version "imposes a relatively light burden upon the bookseller, in

contrast to the state’s interest in protecting juveniles from materials

harmful to them." Id.

Upon receipt of the Supreme Court of Virginia’s answers to the

two certified questions, the U.S. Supreme Court vacated our decision

in American Booksellers I and remanded the case to us for reconsiderPSINET, INC. v. CHAPMAN 27
ation of the case in light of the Virginia Supreme Court’s answers

construing the statute narrowly. Virginia v. Am. Booksellers Ass’n,

Inc., 488 U.S. 905 (1988). 

In view of the Virginia Supreme Court’s construction of the statute,

we reversed our previous conclusion that the 1985 Version was

unconstitutional under the First Amendment. Am. Booksellers Ass’n,

Inc. v. Virginia, 882 F.2d 125, 126 (4th Cir. 1989) ("American Booksellers II"). We noted that the Supreme Court of Virginia’s explanation that "the 1985 amendment was not aimed at mere browsing but

at ‘the opportunity [a bookseller] may afford to juveniles to take off

the shelves books which they are unable to buy, and to read them in

the store.’" Id. at 127. Most importantly, we stated that we "agree

with the Virginia Supreme Court that the amendment to the statute

places a minimal burden on booksellers and represents a constitutionally permissive exercise of the state’s police powers." Id. at 127-28.

The 1985 Version was thus ultimately held constitutional against a

facial First Amendment challenge. The Supreme Court denied the

petition for a writ of certiorari. Am. Booksellers Ass’n, Inc. v. Virginia, 494 U.S. 1056 (1990). 

To clarify the all-inclusiveness of § 18.2-391 — which applied to

any visual representation or image, any printed matter however reproduced, and any sound recording — and to make explicit that visual,

written, or sound-recorded materials include those created or transmitted electronically, Virginia amended the statute in 1999 to specify

that a visual representation or image includes an "electronic file or

message containing an image" and that printed matter however reproduced includes an "electronic file or message containing words." 1999

Va. Acts ch. 936 (codified as Va. Code Ann. § 18.2-391(A)) (the

"1999 Amendment"). 

The plaintiffs commenced this action as a second facial challenge

of § 18.2-391 in view of the clarifying 1999 Amendment. Contending

that the statute is unconstitutional under the First Amendment and

under the dormant Commerce Clause of the U.S. Constitution, they

allege that the 1999 Amendment extended the reach of the 1985 Version of the statute from physical space into cyberspace and that,

because of the nature of the Internet, the 1999 Amendment is not sufficiently precise to withstand strict scrutiny under the First Amend28 PSINET, INC. v. CHAPMAN
ment. They also allege that Virginia’s regulation imposes an undue

burden on interstate commerce because the effect of the statute is to

restrict commercial electronic materials in all states, not just Virginia,

for which the statute was enacted. Because the plaintiffs filed this

action before enforcement of § 18.2-391 as amended in 1999, there

are no facts to govern its application in this case. The plaintiffs could

and did allege only how they believed they would be affected by

enforcement of the statute. The plaintiffs are businesses that provide

Internet access (e.g., PSINet, the Commercial Internet Exchange

Association); businesses that provide content transmitted over the

Internet (e.g., Charlottesville Sexual Health & Wellness Clinic, A

Different Light Bookstores); individuals who provide content transmitted over the Internet (e.g., Susie Bright); and membership organizations representing individuals whose access to pornographic

materials would be limited by the law (e.g., People for the American

Way). 

The district court granted the plaintiffs’ motion for summary judgment and permanently enjoined Virginia from enforcing Virginia

Code § 18.2-391 "to the extent it prohibits the sale, rental, loan or display of an ‘electronic file or message containing an image’ or an

‘electronic file or message containing words.’" PSINet, Inc. v. Chapman, 167 F. Supp. 2d 878, 892 (W.D. Va. 2001). In doing so, the

court ruled that the extension of the law to the Internet created a violation of the First Amendment where there previously had been none.

As the district court explained:

The pre-amendment version of section 18.2-391 applied

only to traditional media in physical spaces, and thus made

it possible to restrict minors’ access to indecent material

without substantially burdening adult access. . . . [T]he same

cannot be said for material on the Internet. That is, efforts

to comply with the 1999 [Amendment] will result in the

exclusion of too many adults from accessing material to be

constitutionally sound.

Id. at 887. The district court also held that the 1999 Amendment violated the dormant Commerce Clause. As the court explained:

[S]tate laws regulating cyberspace pornography currently

impose a much greater burden on out-of-state businesses

PSINET, INC. v. CHAPMAN 29
providing adult material on the Internet than state laws regulating real-space pornography imposed on out-of-state adult

magazine publishers and other real-space pornography providers. . . . Thus, to avoid prosecution, an adult Web site

operator must comply with the most restrictive state obscenity regulations if it is to make its content available on the

Web at all. . . . This leads the court to conclude that, due to

the current status of geographic filtering technology on the

Internet, § 18.2-391 violates the Commerce Clause. 

Id. at 891. 

From the district court’s permanent injunction entered against Virginia on October 11, 2001, prohibiting enforcement of the 1999

Amendment, Virginia appealed. 

II

The Commonwealth of Virginia contends first that American Booksellers II, 882 F.2d 125, which rejected a facial challenge to the statute on vagueness and First Amendment grounds, precludes this

second facial challenge to the extent that this challenge is also based

on the First Amendment. It acknowledges that American Booksellers

II does not preclude consideration of the dormant Commerce Clause

issue, nor would it preclude a later "as applied" claim filed by persons

who were not party to the American Booksellers case. But Virginia

notes correctly that this case is not an "as applied" claim, but a second

facial challenge. 

The district court rejected Virginia’s position, citing three reasons.

First, the court observed that "common sense tells a reader of the statute that the initial catch-all phrases of the statute do not cover Internet

materials." PSINet, Inc. v. Chapman, 108 F. Supp. 2d 611, 620 (W.D.

Va. 2000). The court pointed out that "printed matter however reproduced" in the statute "refers to printed matter — not electronic material." Id. Second, the district court noted that when the 1985 Version

was enacted, "Internet communication was not envisioned." Id. And

third, it asserted that by making the change, the Virginia legislature

must be "presumed to act with purpose" and therefore it "add[ed]

something entirely different to the statute." Id. at 620-21. 

30 PSINET, INC. v. CHAPMAN
As amended in 1985, § 18.2-391 makes unlawful a commercial

transaction through which pornographic material harmful to juveniles

is sold, rented, loaned, or displayed. The media that are included in

the 1985 statute are: "Any picture, photography, drawing, sculpture,

motion picture film, or similar visual representation or image" and

"[a]ny book, pamphlet, magazine, printed matter however reproduced,

or sound recording." Va. Code Ann. § 18.2-391(a) (1985). In reading

this statute in a common sense manner, the district court seemed to

have been focused on "printed matter" and did not recognize the

breadth of the statute, which not only includes very specific media as

examples but which also indicates an intent to cover all media that

may be seen, read, or heard. Stripped of the examples provided, the

statute prohibits the transference of pornographic material harmful to

juveniles through any "visual representation or image," any "printed

matter however reproduced," and any "sound recording." The obvious

focus of the Virginia legislature was on all media that reach the eyes

or ears of juveniles. Thus, when the Virginia legislature added as

another example of those media, the electronic medium "containing

an image" or "containing words," it was not adding substance to the

previous intended language of any "visual representation or image,"

any "printed matter however reproduced," and any "sound recording."

Surely, the original statutory language would include harmful material displayed on video tape played on a television or created by electronic means, such as a digital camera. I respectfully submit that

common sense — rather than suggesting an interpretation restricted

to any medium that does not include the electronic medium — suggests that the Virginia legislature always intended to include all

media, and when it added the electronic medium to the list of examples included, it was simply clarifying the statute for the increasingly

pervasive electronic age. There is no indication that the 1985 Version

was intended to exclude any medium then in place or thereafter possible. Rather, the defining criteria were visual material, words, and

sound. 

The district court’s observation that the Internet could not have

been envisioned by the legislature in 1985 and therefore it was necessary to add the reference to electronic medium is unfounded for two

reasons. First, it is apparent historically that in 1985, the distribution

of pornography by tape recordings and computers was already a problem and that at least one state legislature had already addressed it and

PSINET, INC. v. CHAPMAN 31
others were addressing it. See Computer Pornography and Child

Exploitation Act of 1985, S. 1305, 99th Cong. (1985); Computer Pornography and Child Exploitation Act: Hearings on S. 1305 Before the

Subcomm. on Juvenile Justice of the Senate Comm. on the Judiciary,

99th Cong. 17 (1985) (testimony of Kenneth V. Lanning, FBI Special

Agent, describing the use of computer bulletin boards by pedophiles

to communicate with one another); 1982 Cal. Stat. c.936, at 3395

(amending section 313 of the California Penal Code by adding "computer program" to the list of media capable of disseminating harmful

matter to children); D’Vera Cohn, Kiddy Porn Enters Computer Age,

United Press International, Dec. 8, 1982 (describing the increasing

use of computers and video recorders by child pornographers); Police

Uncover Child Pornography Ring, Associated Press, Feb. 6, 1980

(reporting arrest of suspect "accused of plotting a national and possibly worldwide computerized child pornography scheme"). 

Second, a statute that uses clearly inclusive language is not rendered inoperable for unanticipated circumstances that fall within the

scope of the language. For example, the Fourteenth Amendment prescribes that no state may make any law denying "any person" "equal

protection of the laws." Yet no one anticipated at the time of its ratification in 1868 that all of the privileges accorded to men must also be

accorded to women. Nonetheless, the unambiguous language of the

protection included women, and it is so construed today. This follows

the basic canon of statutory interpretation that we give the words in

text their natural meaning, and so long as that meaning is not ambiguous, we presume that to be the intent of the legislature, even though

such intent might be historically questioned. 

Finally, the district court reasoned that by making an amendment

in 1999, the Virginia legislature must have had a purpose. That purpose, however, need not have been to make a substantive change

expanding the scope of the statute. An equally valid purpose would

have been to provide clarification to a statute that would be increasingly applied to the electronic medium. Indeed, because of the preexisting all-inclusive language, it is reasonable to conclude that the 1999

Amendment was only a clarification and not an expansion of the statute’s proscription. 

Yet the majority accepts the reasoning of the district court in rejecting the applicability of American Booksellers II and, indeed, chooses

32 PSINET, INC. v. CHAPMAN
to reverse it. My independent review of this issue does not permit me

to join a ruling rejecting the application of binding precedent. 

It is readily apparent to me that our decision in American Booksellers II has binding force on the question whether Virginia Code

§ 18.2-391 is constitutional under the First Amendment. The arguments that were made in that first facial challenge are the same that

are now made in this case, and the reasons on which we relied in

American Booksellers II to reject those arguments also now apply

here. 

In American Booksellers I, the challenge to the statute was a facial

challenge based on vagueness and on violation of the First Amendment. In our first review, we concluded, as did the district court in this

case, that § 18.2-391 was unconstitutional. When Virginia argued that

"retail outlets" selling pornography could "readily modify their display methods to comply" with the statute, we said that the methods

suggested were either "insufficient" or "unduly burdensome." American Booksellers I, 802 F.2d at 696 (emphasis added). We agreed with

the plaintiffs’ assertion "that the display provision of the [1985 Version] will unreasonably restrict adult access to materials protected

under the first amendment," id. at 894, stating that the 1985 Version

discourages the exercise of first amendment rights in a real

and substantial fashion, and . . . it is not readily subject to

a narrowing interpretation so as to withstand an overbreadth

challenge. 

Id. at 696. All of these grounds are parroted in this case by the district

court, and now by the majority. 

On review of American Booksellers I, however, the Supreme Court

observed that if the statute could be construed narrowly, then it might

survive the constitutional challenge under the First Amendment. The

Court restated the standing constitutional principle applicable to facial

challenges that if "‘readily susceptible’ to a narrowing construction

that would make it constitutional, [a statute] will be upheld." Virginia

v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988) (citations

omitted). The Court accordingly certified to the Virginia Supreme

Court the question of whether the statute was to be construed narPSINET, INC. v. CHAPMAN 33
rowly. When the Virginia Supreme Court indicated that the statute

should be narrowly construed to save it from invalidity, Commonwealth v. Am. Booksellers Ass’n, Inc., 372 S.E.2d 618, 624-25 (Va.

1988), the U.S. Supreme Court vacated our holding in American

Booksellers I. On remand, we reconsidered our rulings in American

Booksellers I, and in light of Virginia’s authoritative construction of

the statute, we upheld it under the First Amendment. American Booksellers II, 882 F.3d at 127-28. We stated that the burden imposed in

§ 18.2-391 that no person shall "display for commercial purpose in a

manner whereby juveniles may examine and peruse" pornographic

materials harmful to juveniles "places a minimal burden on booksellers and represents a constitutionally permissive exercise of the state’s

police powers." Id. Even though the argument leading to that language was presented to us from a bookseller’s point of view, the analysis of the provision’s constitutionality and our holding were stated

more broadly, and they now clearly apply. 

Since this is merely a renewed challenge in which the same First

Amendment arguments are made as were made in American Booksellers II, albeit now presented to us by a purveyor using the electronic

medium, the holding of American Booksellers II is binding. With

respect to the book medium that we considered there, we necessarily

held that persons could not openly display books containing material

harmful to juveniles in an open air market, even though such a market

might be organized to sell books. We held that the implicit requirement imposed by the statute on booksellers (1) to conceal harmful

books from the public at large and (2) to reveal them only to adults

did not place an undue burden on the booksellers’ right to sell constitutionally protected material. When our holding is considered in its

full breadth, it becomes apparent that it reaches any commercial purveyor of harmful materials. Thus, under American Booksellers II, a

seller of harmful materials over the Internet or through any other

medium would have to conceal the harmful materials from the public

at large and reveal them only to adults. And in light of the technological controls available to such commercial purveyors on the Internet

and now being used by them — as demonstrated in Part III, below —

the burden is not significantly different from that imposed on booksellers. 

I therefore agree with Virginia that the First Amendment issue is

"settled" and that this second "First Amendment facial challenge is

34 PSINET, INC. v. CHAPMAN
foreclosed." But even on the merits under a strict-scrutiny analysis,

this facial challenge fails as did the first facial challenge. 

III

The standard for our review is well known. A content-based

restriction on constitutionally protected speech is constitutional under

the First Amendment only if it survives strict scrutiny; it "must be

narrowly tailored to promote a compelling Government interest."

United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813

(2000). "If a less restrictive alternative would serve the Government’s

purpose, the legislature must use that alternative." Id.

The district court, as well as the parties, agree that Virginia has a

compelling interest in denying juveniles access to pornographic materials that are harmful to juveniles, as described by the statute — materials that depict "sexually explicit nudity, sexual conduct or

sadomasochistic abuse" or that contain "explicit and detailed" narratives of "sexual excitement, sexual conduct or sadomasochistic

abuse." Va. Code Ann. § 18.2-391(A)(1), (2). The sole issue on the

plaintiffs’ facial challenge based on First Amendment grounds is

whether the 1999 Amendment is narrowly tailored to promote Virginia’s interest in denying juveniles access to pornographic materials

harmful to them. 

Concluding that the statute was unconstitutional, the district court

did not identify any less restrictive alternative that would suggest that

the statute was not narrowly tailored. Indeed, the court appears to

have concluded that the statute was narrowly tailored but, even so,

that in balancing the burden imposed by the statute against the benefits gained, the burden "outweighed" the benefits. Such a balancing

test, however, does not form part of the strict scrutiny analysis. When

it is accepted that the State’s restriction on speech promotes a compelling governmental interest, the test that we must apply is whether the

restriction is narrowly tailored to promote the State’s interest. Playboy, 529 U.S. at 813. 

Not only did the district court fail to identify a less restrictive alternative to promote Virginia’s compelling interest, it concluded that the

alternatives available were not unduly burdensome. As Virginia had

PSINET, INC. v. CHAPMAN 35
amply demonstrated in the record, the district court recognized that

credit card identification systems and PIN numbers, as well as age

verification services, are available and effective to restrict a zone of

the Internet to adults. Indeed, the district court found that "the costs

associated with implementing credit card screening devices and adult

PIN systems are unlikely to drive adult Web sites from the ‘marketplace of ideas.’ The fact that thousands of adult Web sites currently

utilize verification systems suggests that the burden associated with

maintaining such a system is outweighed by the continued consumer

demand for the content these Web sites provide." PSINet, Inc. v.

Chapman, 167 F. Supp. 2d 878, 888 (W.D. Va. 2001). The district

court acknowledged that because the Virginia statute is limited to

material displayed for a commercial purpose, the concerns expressed

in Reno v. ACLU, 521 U.S. 844, 865 (1997) (recognizing that the

New York statute held constitutional in Ginsberg v. New York, 390

U.S. 629 (1968), "applied only to commercial transactions"), were not

present in this case. PSINet, 167 F. Supp. 2d at 888. The district court

thus concluded explicitly that Virginia’s statute — the 1999 Amendment — was not "overly burdensome on commercial Web sites." Id.

This finding by the district court should have ended the strictscrutiny analysis under the First Amendment, with the conclusion that

the statute did not violate the Constitution. But the district court

reached an opposite conclusion, relying on a newly fabricated balancing test and on its further observation that the 1999 Amendment 

does not include an affirmative defense to prosecution for

commercial Web sites if they in fact incorporate such compliance measures. Thus, even the most responsible adult

Web sites may have legitimate concerns that they will be

subjected to criminal liability in the State of Virginia. 

PSINet, 167 F. Supp. 2d at 888. The court thus held that the implicit

burden created by the threat of criminal prosecution would inappropriately "chill" the plaintiffs’ First Amendment rights. Id.

Even as the district court’s analysis lies outside of the strict scrutiny analysis, the district court also misapprehended the liability

imposed by the Virginia statute — noting the absence of an affirmative defense for reasonable compliance efforts — and therefore the

36 PSINET, INC. v. CHAPMAN
court miscalculated the extent of any "chilling" effect. The statute

includes the substance of such a defense as part of the State’s proof

in establishing a violation. It punishes persons who "knowingly display" materials harmful to juveniles. And the Virginia Supreme Court

has authoritatively interpreted this liability narrowly:

A violation must consist of proof beyond a reasonable doubt

that the bookseller knowingly afforded juveniles an opportunity to peruse harmful materials in his store or, being aware

of facts sufficient to put a reasonable person on notice that

such opportunity existed, took no reasonable steps to prevent the perusal of such materials by juveniles. 

Commonwealth v. Am. Booksellers Ass’n, Inc., 372 S.E.2d 618, 625

(Va. 1988). Thus, to be liable under this statute, the prosecution

would have to show that commercial websites (1) knowingly permitted juveniles an opportunity to peruse harmful materials, or (2) took

no reasonable steps to prevent such perusal when they were aware of

facts putting a reasonable person on notice of the possibility. Id. at

625. This hardly exposes commercial websites to the broad liability

feared by the district court. 

As Virginia demonstrated in the record, just as booksellers could

create zones in their bookstores limited to adult materials and could

restrict the perusal and sales of those books to adults, websites can

create zones on the Internet limited in access to adults. No adult

would, through this process, be denied access to constitutionally protected speech. See Ginsberg, 390 U.S. at 638 & n.6. Rather, minimally burdensome steps would have to be taken to create such adult

zones and to limit access to adults. The Supreme Court has recognized the nexus between the availability of Internet filtering technology and the maintenance of adult access to online pornographic

materials. See Reno v. ACLU, 521 U.S. 844, 876-77, 881-82 (1997).

In Reno, the Court credited the district court’s finding that "at the time

of trial existing technology did not include any effective method for

a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults," id. at 876,

and the Court therefore commended the district court’s refusal "to

rely on unproven future technology to save the [Communications

Decency Act]," id. at 882. 

PSINET, INC. v. CHAPMAN 37
But as Justice O’Connor pointed out, "it is possible to construct

barriers in cyberspace and use them to screen for identity, making

cyberspace more like the physical world and, consequently, more

amenable to zoning laws." Reno, 521 U.S. at 890 (O’Connor, J., concurring in the judgment in part and dissenting in part). In the context

of 1997, however, Justice O’Connor recognized that the necessary

technology was available but was too insufficiently dispersed on the

Internet to be relied upon for purposes of the Communications

Decency Act. As she put it, "Gateway technology is not ubiquitous

in cyberspace, and because without it ‘there is no means of age verification,’ cyberspace still remains largely unzoned — and unzoneable."

Id. at 891. (O’Connor, J., concurring in the judgment in part and dissenting in part) (quoting ACLU v. Reno, 929 F. Supp. 824, 846 (E.D.

Pa. 1996)). 

Yet, only five years later, when the Supreme Court reviewed Congress’ next attempt to regulate Internet obscenity — the Child Online

Protection Act (COPA) — it recognized that a publisher of pornographic materials on the Internet could target certain audiences and

"need only take the simple step of utilizing a medium that enables it

to target the release of its material into those communities." Ashcroft

v. ACLU, 535 U.S. 564, 583 (2002). Indeed, the Court recognized that

COPA did not "foreclose an entire medium of expression" on the

Internet because it "only requires that such material be placed behind

adult identification screens." Id. at 583 n.14. Thus, within five years’

time, the cyber-barriers that Justice O’Connor had referred to in Reno

had become widespread and effective. 

And now, the district court in this case has concluded that technological mechanisms exist to create adult zones by using credit cards,

passwords, PIN identification, adult verification services, and website

self-identification methods. PSINet, 167 F. Supp. 2d at 887-88. Moreover, Virginia points out what the district court accepted and what the

Supreme Court recognized in Ashcroft v. ACLU:

In the world of web-based commercial pornography, "electronic screens" requiring credit card or age verification

devices are commonplace. So, too, are "teasers," hardcore

pornography strategically placed in front of such screens.

All commercial pornographers need to do to abide by Vir38 PSINET, INC. v. CHAPMAN
ginia law is to move these pre-existing "screens" so that

such screens appear before pornographic teasers are displayed. 

Accord Ashcroft, 535 U.S. at 583 n.14 (citing "adult identification

screens" as a feasible Internet alternative). 

To reach its conclusion that Virginia’s statute violates the First

Amendment, the majority relies on propositions that are unsupported

by the record or that are irrelevant to a determination of the scope of

the statute. For example, the majority says that "Internet speakers

have no way of preventing Virginia juveniles from accessing their

Internet speech." Ante at 12. Yet, as has been pointed out, Virginia

demonstrated and the district court accepted the fact that commercial

websites distributing pornography are using available technology

effectively to create adult zones to regulate access to their material.

See PSINet, 167 F. Supp. 2d at 888. 

The majority also says that § 18.2-391’s "attempt to deny minors

access to potentially harmful speech . . . will ‘effectively suppress[ ]

a large amount of speech that adults have a constitutional right to

receive and to address to one another.’" Ante at 12 (quoting Reno, 521

U.S. at 874). Yet, there is no evidence in the record that the Virginia

statute will operate to suppress any speech among adults. Both Virginia and the district court recognized that adults functioning under

the statute will always have access to commercially purveyed pornographic materials. The only question that arose was whether the

mechanisms for restricting access to adults was too burdensome. Just

as adults who want access to adult magazines and books must enter

a bookstore and demonstrate their age to the bookseller, Virginia has

demonstrated that adults wanting pornography from commercial purveyors on the Internet must enter an adult zone through use of credit

cards, PINs, or other demonstrated technological gateways before

gaining access to adult material. Notably, the statute does not reach

non-commercial exchanges occurring in e-mail or chat-rooms. 

To support its view that the statute overreaches in the scope of its

enforcement, the majority essentially discards the Virginia Supreme

Court’s holding that the statute is not violated if a website takes "reaPSINET, INC. v. CHAPMAN 39
sonable steps" to assure that juveniles are not perusing harmful material. The majority says,

[T]here is no indication that the use of a PIN number would

be considered a "reasonable step" to prevent "reasonably

apparent" perusal by juveniles. As the Plaintiffs have previously pointed out, the Commonwealth would certainly not

agree that a liquor or tobacco store that sold to anyone with

a valid credit card number, without some additional step to

ascertain the age of the customer, was taking reasonable

steps to exclude juveniles from the purchase of age prohibitive products. 

Ante at 14. Yet Virginia demonstrated and the district court accepted

the facts that the use of credit cards, PINs, and age verification services are minimally burdensome and that even today, they are used

effectively on the Internet.

The fact that thousands of adult Web sites currently utilize

adult verification systems suggests that the burden associated with maintaining such a system is outweighed by continued consumer demand for the content that these Web

sites provide. . . . [Moreover] commercial Web sites are less

likely than noncommercial sites to be so burdened by the

implementation of an adult identification system that they

are forced to withdraw their content from the Internet. 

PSINet, 167 F. Supp. 2d at 888. Realizing that this evidence is in the

record and that the district court made the conclusions that it did, the

majority argues further, if not somewhat desperately, that "many

adults may be unwilling to provide their credit card number online,

and would therefore not visit the site. Such a restriction would also

serve as a complete block to adults who wish to access adult material

but do not own a credit card." Ante at 14. But so too are many adults

unwilling to enter an adult bookstore and ask for material protected

from juveniles. Moreover, we held in American Booksellers II that the

Virginia statute imposing these burdens on adults is constitutional

against the First Amendment challenge. 

Finally, the majority falls back on the notion that if the statute

operates as Virginia suggests, the statute would be rendered "power40 PSINET, INC. v. CHAPMAN
less." Ante at 16. This effect, however, is a legislative judgment that

must be left to the Virginia legislature. Certainly by creating adult

zones for commercial websites that distribute pornography, the legislation reduces the range and quantity of materials accessible to juveniles. It has been often stated that a legislature need not solve the

entire problem; it is free to take steps to solve only part of the problem. See, e.g., New Orleans v. Dukes, 427 U.S. 297, 303 (1976). 

At bottom, just as the Virginia statute has already been upheld for

constitutionality when argued from the point of a bookseller, who was

impliedly required to undertake minimally burdensome steps to deny

juveniles access to harmful materials while preserving access for

adults, a facial review now leads to the same conclusion when argued

from the point of view of a seller from an Internet website. 

Virginia is justifiably concerned with the open and unrestricted display of pornographic materials harmful to juveniles, and it concededly

has a compelling interest in imposing restrictions on display of those

materials. The 1985 Version of § 18.2-391, as well as the 1999

Amendment, imposes restrictions on the display of such materials to

juveniles for commercial purposes, without denying adults any constitutionally protected speech. See Ginsberg, 390 U.S. at 638 & n.6. And

this statute, as authoritatively construed by the Virginia Supreme

Court, provides a narrowly tailored response directed at commercial

purveyors of these harmful materials, directing that they may not

knowingly display such materials to juveniles and, if they are aware

that such juveniles are perusing such materials, they must take reasonable steps to prevent the perusal. The State has identified the steps

that websites can reasonably take, and the district court properly

found those steps to be not unduly burdensome. 

I would, therefore, uphold Virginia Code § 18.2-391(A) against the

First Amendment challenge made in this case. 

IV

Finally, Virginia contends that the district court erred in finding

that § 18.2-391 violates the dormant Commerce Clause. The district

court held that the Virginia statute unduly burdens interstate comPSINET, INC. v. CHAPMAN 41
merce by placing restrictions on electronic commercial materials in

all states. The court stated:

State obscenity regulations are not invalidated under the

Commerce Clause because they impose compliance costs on

businesses located outside their state’s borders. 

Nevertheless, state laws regulating cyberspace pornography currently impose a much greater burden on out-of-state

businesses providing adult material on the Internet than state

laws regulating real-space pornography. . . . [T]o avoid

prosecution, an adult Web site operator must comply with

the most restrictive state obscenity regulations if it is to

make its content available on the Web at all. In contrast,

purveyors of real-space pornography can choose to comply

with the regulations of only those states to which they affirmatively distribute. This leads the court to conclude that . . .

section 18.2-391 violates the Commerce Clause. 

PSINet, 167 F. Supp. 2d at 891 (footnote omitted). 

For statutes that do not facially discriminate against interstate commerce, the Supreme Court has adopted an analysis for determining

whether a State regulation unconstitutionally burdens interstate commerce:

Where the statute regulates even-handedly to effectuate a

legitimate local public interest, and its effects on interstate

commerce are only incidental, it will be upheld unless the

burden imposed on such commerce is clearly excessive in

relation to the putative local benefits. If a legitimate local

purpose is found, then the question becomes one of degree.

And the extent of the burden that will be tolerated will of

course depend on the nature of the local interest involved,

and on whether it could be promoted as well with a lesser

impact on interstate activities. 

Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (citation omitted) (quoted in Oregon Waste Sys., Inc. v. Dep’t of Envtl. Quality of

Oregon, 511 U.S. 93, 99 (1994)). 

42 PSINET, INC. v. CHAPMAN
There is no dispute in this case that Virginia has a "legitimate local

public interest" in denying juveniles pornography material deemed

harmful to them. Indeed, the parties, as well as the district court, agree

that Virginia has a compelling interest in regulating pornography

harmful to juveniles. The only question remaining is whether the burden imposed by § 18.2-391 on interstate commerce is "clearly excessive in relation to the putative local benefits." Pike, 397 U.S. at 142.

The district court’s own conclusions based on the demonstrated

technology appear to resolve this question readily. It found that the

compliance measures necessitated by § 18.2-391 are not "overly burdensome on commercial Web sites," PSINet, 167 F. Supp. 2d at 888,

and "are unlikely to have a substantial effect on commercial Web site

operators," id. at 889. The specific burden on First Amendment rights

that the district court determined would overwhelm Virginia’s compelling interest was the denial of adult access to pornography, not

§ 18.2-391’s putative burden on interstate commerce. 

Thus, I agree that Virginia has a compelling State interest in regulating pornography harmful to juveniles within the jurisdictional limits of its sovereignty, and the burden that § 18.2-391 would impose

on Internet purveyors would be minimal. I also agree with Virginia’s

observation that:

Website operators may still purvey pornography. Adults

seeking such material from the Internet may still readily

obtain it. All the [Virginia] law requires is that the harmful

materials — including free materials — be placed behind

the electronic screens already in use, rather than posted as

"teasers" in front of it. 

Accordingly, I would uphold Virginia’s statute under the facial

challenge made pursuant to the dormant Commerce Clause. 

V

Virginia has made a staunch attempt to promote its compelling

interest in denying juveniles access to harmful pornographic materials

while at the same time minimizing the burdens of its regulation on

PSINET, INC. v. CHAPMAN 43
adults. It began in 1970 by tailoring its statute after the Supreme

Court’s decision in Ginsberg. And when it amended this statute in

1985, it narrowly tailored the statute to comport with the First

Amendment, as we concluded in American Booksellers II. Finally,

when it amended the statute in 1999 to clarify its application to the

Internet, Virginia made clear that it was restricting the statute to commercial efforts to purvey pornography, and then only to purveyors

who knowingly violated the law or who failed to take reasonable

steps when aware that the law was being violated. It also provided

immunity to Internet Service Providers. See 2000 Va. Acts ch. 1009

(now codified in Va. Code Ann. § 18.2-391(A)(2)). 

If this narrowly tailored statute does not survive strict scrutiny,

then the conclusion must be drawn that States have no alternative but

to abandon efforts to regulate Internet-based pornography deemed

harmful to juveniles. Yet, the Supreme Court is not prepared to accept

this conclusion, nor is Virginia. To the contrary, the Supreme Court

has observed that with the appropriate technology, zones of adult

material can be created on the Internet as an appropriate form of regulation. See, e.g., Ashcroft, 535 U.S. at 583 & n.14; Reno v. ACLU, 521

U.S. at 886-91 (O’Connor, J., concurring in the judgment in part and

dissenting in part). 

Commercial websites distributing pornography on the Internet now

make use of technology that can be applied to comport with Virginia’s statutory requirements. They display free clips of their material

as "teasers" to entice the viewer to enter their adult zone and purchase

a complete viewing of this material. To enter the zone, however, the

viewer must provide credit and adult verification. Moreover, as Virginia demonstrated and the district court accepted, the fact that age

verification measures are now available and are being used with minimal burden on e-commerce, it is difficult to conceive how these website purveyors should complain when Virginia suggests that these

mechanisms could be employed to satisfy § 18.2-391. Conceptually,

pornographic websites today operate adult "e-bookstores" into which

they invite all adults, and they are controlling access to their adult

zones of cyberspace. This is hardly different from the "real-space" circumstances of a bookseller selling pornography. 

I would reverse the judgment of the district court and uphold the

constitutionality of the statute. I therefore respectfully dissent. 

44 PSINET, INC. v. CHAPMAN