2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-11-2003

ACLU v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket 99-1324

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PRECEDENTIAL

Filed March 6, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1324

AMERICAN CIVIL LIBERTIES UNION;

ANDROGYNY BOOKS, INC. d/b/a A DIFFERENT LIGHT

BOOKSTORES; AMERICAN BOOKSELLERS FOUNDATION

FOR FREE EXPRESSION; ARTNET WORLDWIDE

CORPORATION; BLACKSTRIPE; ADDAZI INC. d/b/a

CONDOMANIA; ELECTRONIC FRONTIER FOUNDATION;

ELECTRONIC PRIVACY INFORMATION CENTER; FREE

SPEECH MEDIA; INTERNET CONTENT COALITION;

OBGYN.NET; PHILADELPHIA GAY NEWS; POWELL’S

BOOKSTORE; RIOTGRRL; SALON INTERNET, INC.; WEST

STOCK, INC.; PLANETOUT CORPORATION

v.

JOHN ASHCROFT, in his official capacity as

ATTORNEY GENERAL OF THE UNITED STATES,

Appellant

Appealed from the United States District Court

for the Eastern District of Pennsylvania

(No. CIV.A.98-5591)

District Judge: Honorable Lowell A. Reed, Jr.

Originally Argued November 4, 1999

On Remand from the United States Supreme Court

(No. 00-1293)

Argued on Remand October 29, 2002

BEFORE: NYGAARD and McKEE, Circuit Judges,

and GARTH, Senior Circuit Judge
(Opinion filed March 6, 2003)

Robert D. McCallum, Jr.

Assistant Attorney General

Patrick L. Meehan

United States Attorney

Barbara L. Herwig

Jacob M. Lewis (Argued)

Charles W. Scarborough

Attorneys, Appellate Staff

Civil Division, Room 9120

Department of Justice

601 D Street, N.W.

Washington, D.C. 20530-0001

Attorneys for Appellant

Douglas A. Griffin

Catherine E. Palmer

Michele M. Pyle

Katherine M. Bolger

Christopher R. Harris

Latham & Watkins

885 Third Avenue

Suite 100

New York, New York 10022-4802

Ann E. Beeson (Argued)

Christopher A. Hansen

American Civil Liberties Union

Foundation

125 Broad Street, 18th Floor

New York, New York 10004

John C. Salyer

American Civil Liberties Union of

New Jersey Foundation

P.O. Box 750

Newark, New Jersey 07101

Attorneys for Appellee

American Civil Liberties Union

2
John C. Salyer

Christopher A. Hansen

Ann E. Beeson

Stefan Presser

American Civil Liberties Union

of Pennsylvania

125 South Ninth Street, Suite 701

Philadelphia, Pennsylvania 19107

Attorneys for Appellees

Androgyny Books, Inc., d/b/a A

Different Light Bookstores; American

Booksellers Foundation for Free

Expression; Artnet Worldwide;

Blackstripe; Addazi, Inc., d/b/a

Condomania; Electronic Frontier

Foundation; Electronic Privacy

Information Center; Free Speech

Media; Internet Content Coalition;

OBGYN.Net; Philadelphia Gay News;

Powell’s Bookstore; Riotgrrl; Salon

Internet, Inc.; West Stock, Inc.;

Planetout Corporation

David L. Sobel

Electronic Privacy Information

Center

666 Pennsylvania Ave., S.E.

Suite 301

Washington, D.C. 20003

Attorney for Appellee

Electronic Privacy Information Center

Lee Tien

Electronic Frontier Foundation

454 Shotwell Street

San Francisco, CA 94110

Attorney for Appellee

Electronic Frontier Foundation

3
Paul J. McGeady

Mary McNeill

Of counsel

475 Riverside Drive

New York, New York 10115

David P. Affinito

Counsel of Record

Morality in Media, Inc.

American Catholic Lawyers

Association

Dell’Italia, Affinito, Jerejian

& Santola

18 Tony Galento Plaza

Orange, New Jersey 07050

Attorneys for Amici Curiae-Appellant

Morality in Media, Inc., American

Catholic Lawyers Association

Bruce A. Taylor

Counsel of Record

Carol A. Clancy

Co-Counsel

National Law Center for Children

and Families

3819 Plaza Drive

Fairfax, Virginia 22030-2512

James J. West

Local Counsel

105 North Front Street

Harrisburg, Pennsylvania 17101

Attorneys for Amici Curiae-Appellant

John S. McCain, Senator; Dan Coats,

Senator; Thomas J. Bliley,

Representative; Michael G. Oxley,

Representative; James C. Greenwood,

Representative

4
Janet M. LaRue

Family Research Council

801 G Street, N.W.

Washington, D.C. 20001

Attorney for Amicus

Curiae-Appellants Family Research

Council; Enough is Enough; The

Jewish Policy Center

Paula Bruening

John B. Morris, Jr.

Alan B. Davidson

Center for Democracy & Technology

1634 I Street, N.W., Suite 1100

Washington, D.C. 20006

R. Bruce Rich

Jonathan Bloom

Counsel for the Association of

American Publishers, Inc.

Weil, Gotshal & Manges LLP

767 Fifth Avenue, 17th Floor

New York, New York 10153

Richard M. Schmidt, Jr.

Kevin M. Goldberg

Counsel for the American Society

of Newspaper Editors

Cohn and Marks LLP

1920 N. Street, N.W., Suite 300

Washington, D.C. 20036

5
Burt Joseph

Barsy Joseph and Lichtenstein

Counsel for the Comic book

Legal Defense Fund

12 W. 15th Street

Chicago Heights, Illinois 60411

Edward J. Black

Jason Mahler

Computer and Communications

Industry Association

666 11th Street, N.W.

Washington, D.C. 20001

Elliot M. Mincberg

Lawrence S. Ottinger

People for the American

Way Foundation

2000 M Street, N.W., Suite 400

Washington, D.C. 20036

Lloyd J. Jassin

Law Offices of Lloyd J. Jassin

Counsel for the Publishers

Marketing Association

The Actor’s Equity Building

1560 Broadway, Suite 400

New York, NY 10036

6
Bruce W. Sanford

Robert D. Lystad

Bruce D. Brown

Counsel for the Society of

Professional Journalists

Baker & Hostetler LLP

1050 Connecticut Avenue N.W.,

Suite 1100

Washington, D.C. 20036

Attorneys for Amicus

Curiae-Appellees The American

Society of Newspaper Editors; The

American Association of Law

Libraries; Bibliobytes, Inc.; The

Center for Democracy & Technology;

The Comic Book Legal Defense Fund;

The Commercial Internet Exchange

Association and PSINET, Inc.;

Freedom to Read Foundation; The

Information Technology Association of

America; Internet Alliance; Magazine

Publishers of America; The National

Association of Recording

Merchandisers; People for the

American Way; Periodical Book

Association; PSINET, Inc.; The

Publishers Marketing Association; The

Recording Industry Association of

America; The Society for Professional

Journalists

7
Stephen A. Bokat

National Chambers Litigation Center

1615 H St., N.W.

Washington, D.C. 20062

Bruce J. Ennis

Jenner & Block

601 13th Street, N.W.

12th Floor

Washington, D.C. 20005

Attorney Amicus Curiae-Appellee

The Chamber of Commerce of

the United States of America

Bruce J. Ennis

Jenner & Block

601 13th Street, N.W.

12th Floor

Washington, D.C. 20005

Attorney for Amicus Curiae-Appellee,

Internet Education Foundation

Carl A. Solano

Theresa E. Loscalzo

Jennifer Dufault James

Joseph T. Lukens

Dionna K. Litvin

Schnader Harrison Segal &

Lewis LLP

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Attorneys for Amicus

Curiae-Appellees American Society of

Journalists and Authors, et al.

OPINION OF THE COURT

GARTH, Circuit Judge:

This case comes before us on vacatur and remand from

the Supreme Court’s decision in Ashcroft v. ACLU, ___ U.S.

8
___, 122 S. Ct. 1700 (2002), in which the Court held that

our decision affirming the District Court’s grant of a

preliminary injunction against the enforcement of the Child

Online Protection Act (“COPA”)1 could not be sustained

because “COPA’s reliance on community standards to

identify ‘material that is harmful to minors’ does not by

itself render the statute substantially overbroad for

purposes of the First Amendment.” Id. at 1713 (emphasis in

original). Pursuant to the Supreme Court’s instructions in

Ashcroft, we have revisited the question of COPA’s

constitutionality in light of the concerns expressed by the

Supreme Court.

Our present review of the District Court’s decision and

the analysis on which that decision was based does not

change the result that we originally had reached, albeit on

a ground neither decided nor discussed by the District

Court. See ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000)

(“Reno III”), vacated and remanded, 122 S. Ct. 1700 (2002).

We had affirmed the District Court’s judgment granting the

plaintiffs a preliminary injunction against the enforcement

of COPA because we had determined that COPA’s reliance

on “community standards” to identify material “harmful to

minors” could not meet the exacting standards of the First

Amendment. On remand from the Supreme Court, with

that Court’s instruction to consider the other aspects of the

District Court’s analysis, we once again will affirm.

I.

COPA, Pub. L. No. 105-277, 112 Stat. 2681 (1998)

(codified at 47 U.S.C. § 231), is Congress’s second attempt

to regulate pornography on the Internet. The Supreme

Court struck down Congress’s first endeavor, the

Communications Decency Act, (“CDA”), on First

Amendment grounds. See Reno v. ACLU, 521 U.S. 844

(1997) (“Reno I”). To place our COPA discussion in context,

it is helpful to understand its predecessor, the CDA, and

the opinion of the Supreme Court which held it to be

unconstitutional.

1. We attach the text of COPA as Appendix A. 

9
A.

In Reno I, the Supreme Court analyzed the CDA, which

prohibited any person from posting material on the Internet

that would be considered either indecent or obscene. See

Reno I, 521 U.S. at 859. Like COPA, the CDA provided two

affirmative defenses to prosecution: (1) the use of a credit

card or other age verification system, and (2) any good faith

effort to restrict access by minors. See id. at 860. 

The Court, in a 7-2 decision, and speaking through

Justice Stevens, held that the CDA violated many different

facets of the First Amendment. The Court held that the use

of the term “indecent,” without definition, to describe

prohibited content was too vague to withstand

constitutional scrutiny.2 Justice Stevens further determined

that “[u]nlike the regulations upheld in Ginsberg and

Pacifica, the scope of the CDA is not limited to commercial

speech or commercial entities . . . . [Rather, i]ts open-ended

prohibitions embrace all nonprofit entities and individuals

posting indecent messages or displaying them on their own

computers.” Id. at 877.3

In holding that “the breadth of the CDA’s coverage is

wholly unprecedented,” the Court continued by noting that

“the ‘community standards’ criterion as applied to the

Internet means that any communication available to a

nationwide audience will be judged by the standards of the

community most likely to be offended by the message.” Id.

at 877-78. 

2. In particular, the Court cited to discussions of society’s concerns

regarding prison rape and homosexuality — matters that would have

redeeming value, but were nonetheless prohibited by the statute. See id.

at 871; see also id. at 877 (“The general, undefined terms . . . cover large

amounts of non-pornographic material with serious educational or other

value.”). 

3. Justice Stevens was referring to the Supreme Court’s decisions in

Ginsberg v. New York, 390 U.S. 629 (1968), which upheld against a First

Amendment challenge a statute prohibiting the sale to minors of

materials deemed harmful to them (in that case, “girlie” magazines), id.

at 634; and FCC v. Pacifica Foundation, 438 U.S. 726 (1978), which

upheld under the First Amendment the FCC’s authority to regulate

certain broadcasts it deemed indecent. 

10
The Court also discussed the constitutional propriety of

the credit card/age verification defenses authorized by the

CDA. Utilizing the District Court’s findings, the Court held

that such defenses would not be feasible for most

noncommercial Web publishers, and that even with respect

to commercial publishers, the technology had yet to be

proven effective in shielding minors from harmful material.

See id. at 881. As a result, the Court determined that the

CDA was not narrowly tailored to the Government’s

purported interest, and “lacks the precision that the First

Amendment requires when a statute regulates the content

of speech.” Id. at 874.

B.

COPA, by contrast, represents an attempt by Congress,

having been informed by the concerns expressed by the

Supreme Court in Reno I, to cure the problems identified by

the Court when it had invalidated the CDA. Thus, COPA is

somewhat narrower in scope than the CDA. COPA provides

for civil and criminal penalties for an individual who, or

entity that,

knowingly and with knowledge of the character of the

material, in interstate or foreign commerce by means of

the World Wide Web, makes any communication for

commercial purposes that is available to any minor and

that includes any material that is harmful to minors. 

47 U.S.C. § 231(a)(1) (emphasis added). 

Unfortunately, the recited standard for liability in COPA

still contains a number of provisions that are

constitutionally infirm. True, COPA, in an effort to

circumvent the fate of the CDA, expressly defines most of

these key terms. For instance, the phrase “by means of the

World Wide Web” is defined as the “placement of material

in a computer server-based file archive so that it is publicly

accessible, over the Internet, using hypertext transfer

protocol or any successor protocol.” Id. § 231(e)(1).4 As a

4. HTTP, or HyperText Transfer Protocol, has been described as follows:

“Invisible to the user, HTTP is the actual protocol used by the Web

11
result, and as is detailed below, COPA does not target all of

the other methods of online communication, such as email, newsgroups, etc. that make up what is colloquially

known as the “Internet.” See ACLU v. Reno, 31 F. Supp. 2d

473, 482-83 (Finding of Fact ¶ 7) (E.D. Pa. 1999) (“Reno II”).

1.

Further, only “commercial” publishers of content on the

World Wide Web can be found liable under COPA. The

statute defines “commercial purposes” as those individuals

or entities that are “engaged in the business of making

such communications.” 47 U.S.C. § 231(e)(2)(A). In turn, a

person is “engaged in the business” under COPA if that

person

who makes a communication, or offers to make a

communication, by means of the World Wide Web, that

includes any material that is harmful to minors,

devotes time, attention, or labor to such activities, as a

regular course of such person’s trade or business, with

the objective of earning a profit as a result of such

activities (although it is not necessary that the person

make a profit or that the making or offering to make

such communications be the person’s sole or principal

business or source of income). 

Id. § 231(e)(2)(B) (emphasis added). Individuals or entities

therefore can be found liable under COPA if they seek to

make a profit from publishing material on the World Wide

Web — thus, individuals who place such material on the

World Wide Web solely as a hobby, or for fun, or for other

than commercial profiteering are not in danger of either

criminal or civil liability.

Server and the Client Browser to communicate over the ‘wire.’ In short,

[it is] the protocol used for moving documents around the Internet.”

NEWTON’S TELECOM DICTIONARY 335 (17th ed. 2001). 

Essential concepts that are part of HTTP include (as its name implies)

the idea that files can contain references to other files whose selection

will elicit additional transfer requests. 

12
2.

Furthermore, and of greater importance, is the manner in

which the statute defines the content of prohibited

material; that is, what type of material is considered

“harmful to minors.” The House Committee Report that

accompanied COPA explains that the statute’s definition of

the “harmful to minors” test constitutes an attempt to fuse

the standards upheld by the Supreme Court in Ginsberg v.

New York, 390 U.S. 629 (1968), and Miller v. California, 413

U.S. 15 (1973).5 See H.R. REP. NO. 105-775, at 12-13

(1998).

In particular, whether material published on the World

Wide Web is “harmful to minors” is governed by a threepart test, each prong of which must be satisfied before one

can be found liable under COPA:

(A) the average person, applying contemporary

community standards, would find, taking the material

as a whole and with respect to minors, is designed to

appeal to, or is designed to pander to, the prurient

interest;

(B) depicts, describes, or represents, in a manner

patently offensive with respect to minors, an actual or

simulated sexual act or sexual contact, an actual or

simulated normal or perverted sexual act, or a lewd

5. As stated earlier, see note 3, supra, Ginsberg upheld a New York

statute prohibiting the sale to persons under seventeen years of age of

material deemed to be obscene to minors, noting that “the concept of

obscenity . . . may vary according to the group to whom the questionable

material is directed.” Ginsberg, 390 U.S. at 636 (quoting Bookcase, Inc.

v. Broderick, 218 N.E.2d 668, 671 (N.Y. 1966)). Five years later, the

Supreme Court announced its decision in Miller, which advanced the

familiar three-part test for determining obscenity: 

(a) whether “the average person, applying contemporary community

standards” would find that the work, taken as a whole, appeals to

the prurient interest; (b) whether the work depicts or describes, in

a patently offensive way, sexual conduct specifically defined by the

applicable state law; and (c) whether the work, taken as a whole,

lacks serious literary, artistic, political, or scientific value. 

Miller, 413 U.S. at 24 (internal citations and quotation omitted). 

13
exhibition of the genitals or post-pubescent female

breast; and

(C) taken as a whole, lacks serious literary, artistic,

political, or scientific value for minors. 

47 U.S.C. § 231(e)(6).6

This definition follows a formulation similar to that which

the Supreme Court articulated in Miller. Importantly,

however, whereas Miller applied such standards as related

to the average adult, the “harmful to minors” test applies

them with respect to minors.7

COPA, as earlier noted, also provides a putative

defendant with affirmative defenses. If an individual or

entity “has restricted access by minors to material that is

harmful to minors” through the use of a “credit card, debit

account, adult access code, or adult personal identification

number . . . a digital certificate that verifies age . . . or by

any other reasonable measures that are feasible under

available technology,” the individual will not be liable if a

minor should access this restricted material. Id. § 231(c)(1).

The defense also applies if an individual or entity attempts

“in good faith to implement a defense” listed above. Id.

§ 231(c)(2).

C.

On October 22, 1998, the day after President Clinton

signed COPA into law, the American Civil Liberties Union,

as well as a number of individuals and entities that publish

information on the World Wide Web (collectively, the

“plaintiffs” or “ACLU”), brought an action in the United

States District Court for the Eastern District of

Pennsylvania, challenging the constitutionality of the Act.

After five days of testimony, the District Court rendered

sixty-eight separate findings of fact concerning the Internet

6. The statute also provides that material is “harmful to minors” if it is

“obscene.” 47 U.S.C. § 231(e)(6). That part of the definition of material

harmful to minors is not at issue here. 

7. Under COPA, a minor is defined as one under age seventeen. See 47

U.S.C. § 231(e)(7). 

14
and COPA’s impact on speech activity. See Reno II, 31 F.

Supp. 2d at 481-92 (Findings of Fact ¶¶ 0-67). These

findings were detailed in our original opinion. See Reno III,

217 F.3d at 168-69. We recite only those relevant findings

in this opinion when we discuss and analyze the

constitutionality of COPA. These findings bind us in this

appeal unless found to be clearly erroneous. See

Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394,

406 (2001). None of the parties dispute the accuracy of the

findings, and as we recited in Reno III, 217 F.3d at 170,

“none of the parties dispute the District Court’s findings

(including those describing the Internet and Web), nor are

any challenged as clearly erroneous.”

The District Court granted the plaintiffs’ motion for a

preliminary injunction against the enforcement of COPA on

the grounds that COPA is likely to be found

unconstitutional on its face for violating the First

Amendment rights of adults. Reno II, 31 F. Supp. 2d at 495.8

In so doing, the District Court applied the familiar four-part

test in connection with the issuance of a preliminary

injunction. See Allegheny Energy, Inc. v. DQE, Inc., 171

F.3d 153, 158 (3d Cir. 1999) (explaining that a preliminary

injunction is appropriate where the movant can show (1) a

likelihood of success on the merits; (2) irreparable harm

without the injunction; (3) a balance of harms in the

movant’s favor; and (4) the injunction is in the public

interest). 

In evaluating the likelihood of the plaintiffs’ success, the

District Court first determined that COPA, as a contentbased restriction on protected speech (in this case, nonobscene sexual expression), violated the strict scrutiny test.

More specifically, it found that although COPA addressed a

compelling governmental interest in protecting minors from

harmful material online, it was not narrowly tailored to

8. The plaintiffs, however, did not limit their argument before the District

Court to the facial invalidity of COPA with regard to adults. They also

argued that COPA was facially invalid for violating the First Amendment

rights of minors, and that COPA was unconstitutionally vague in

violation of the First and Fifth Amendments. See Reno II, 31 F. Supp. 2d

at 478-79. 

15
serve that interest, nor did it provide the least restrictive

means of advancing that interest. See Reno II, 31 F. Supp.

2d at 493 (citing Sable Communications of Cal., Inc. v. FCC,

492 U.S. 115, 126 (1989)).

The District Court then addressed the remaining prongs

of the preliminary injunction standard, concluding that a

failure to enjoin enforcement of COPA would result in

irreparable harm, that the balance of harms favored the

plaintiffs because the Government does not have “an

interest in the enforcement of an unconstitutional law,” and

that the public interest was “not served by the enforcement

of an unconstitutional law. Indeed, [held the District Court,]

. . . the interest of the public is served by preservation of

the status quo until such time that this Court may

ultimately rule on the merits of plaintiffs’ claims at trial.”

Reno II, 31 F. Supp. 2d at 498. 

As a result, the District Court held that the plaintiffs had

satisfied the requirements for a preliminary injunction

which enjoined the enforcement of COPA.

D.

We affirmed the District Court’s holding, but on different

grounds.9 See Reno III. We held that the reference to

“community standards” in the definition of “material that is

harmful to minors” resulted in an overbroad statute.

Because the Internet cannot, through modern technology,

be restricted geographically, we held that the “community

standards” language subjected Internet providers in even

the most tolerant communities to the decency standards of

the most puritanical. 

As a result, we held that even if we were to assign a

narrow meaning to the language of the statute or even if we

would sever or delete a portion of the statute that is

unconstitutional, we could not remedy the overbreadth

problems created by the community standards language.

9. In so doing, however, we also addressed the four preliminary

injunction factors and held that the plaintiffs had met their burden as

to each of the four factors. See Reno III, 217 F.3d at 180-81. 

16
Hence, we affirmed the District Court’s preliminary

injunction. See id. at 179-81.

E.

The Supreme Court vacated our judgment and remanded

the case for further proceedings. The majority opinion,

consisting of Parts I, II, and IV of the principal opinion

authored by Justice Thomas, was joined by Chief Justice

Rehnquist and Justices O’Connor, Scalia, and Breyer. It

addressed the “narrow question whether the Child Online

Protection Act’s . . . use of ‘community standards’ to

identify ‘material that is harmful to minors’ violates the

First Amendment.” Ashcroft, 122 S. Ct. at 1703. 

After reviewing its decision in Reno I and the two prior

decisions in this case, the Supreme Court referred to the

“contemporary community standards” language from Miller,

as representative of the primary concern in evaluating

restrictions on speech: “to be certain that . . . [material] will

be judged by its impact on an average person, rather than

a particularly susceptible or sensitive person—or indeed a

totally insensitive one.” Miller, 413 U.S. at 33. 

As a result, the Court merely held “that COPA’s reliance

on community standards to identify ‘material that is

harmful to minors’ does not by itself render the statute

substantially overbroad for purposes of the First

Amendment.” Ashcroft, 122 S. Ct. at 1713 (emphasis in

original). The Court was careful, however, not to “express

any view as to whether . . . the statute is unconstitutionally

vague, or whether the District Court correctly concluded

that the statute likely will not survive strict scrutiny

analysis once adjudication of the case is completed below.”

Id. The Court did not vacate the District Court’s preliminary

injunction. Id. at 1713-14. 

In addition to the limited Opinion of the Court, the

Ashcroft Court issued a number of other opinions authored

and joined by other Justices, each of which is instructive to

us on remand. 

For example, Part III-B of Justice Thomas’ opinion was

joined only by Chief Justice Rehnquist and Justices

17
O’Connor and Scalia. That portion of Justice Thomas’

opinion explained that we relied too heavily on the Reno I

Court’s criticism that “the ‘community standards’ criterion

[in the CDA] as applied to the Internet means that any

communication available to a nationwide audience will be

judged by the standards of the community most likely to be

offended by the message,” Ashcroft, 122 S. Ct. at 1709

(opinion of Thomas, J.) (quoting Reno I, 521 U.S. at 877-

78), particularly in light of the fact that COPA was drafted

to cover a smaller category of communication than the CDA

— namely, communication that appeals to the prurient

interest and lacks “serious literary, artistic, political or

scientific value to minors.” 47 U.S.C. § 231(e)(6)(C). 

Moreover, Parts III-A, III-C, and III-D of Justice Thomas’

opinion were joined only by Chief Justice Rehnquist and

Justice Scalia. Those Parts explained that the consideration

of community standards was not invalid simply because

providers of material on the Internet are unable to limit the

availability of their speech on a geographic basis. He

instead pointed out that jurors in different communities are

likely to apply their own sensibilities to any consideration of

community standards, even national ones. Justice Thomas

then concluded that no meaningful distinction existed

between the instant case and prior Supreme Court

decisions upholding the use of a community standards test

with respect to speech transmitted by phone or mail, see

Sable (phone); Hamling v. United States, 418 U.S. 87 (1974)

(mail), stating that speakers bear the burden of determining

their audience, and that those who find themselves

disadvantaged by the fact that Internet communications

cannot be limited geographically can simply choose a

different, more controllable, medium for their

communication. See Ashcroft, 122 S. Ct. at 1711-12

(opinion of Thomas, J.). 

Justice O’Connor filed an opinion concurring in part and

in the judgment. Although she agreed that COPA is not

overbroad solely because of its reliance on community

standards, she acknowledged the possibility that “the use

of local community standards will cause problems for

regulation of obscenity on the Internet . . . in future cases.”

Id. at 1714 (O’Connor, J., concurring). She also disagreed

18
with Justice Thomas’ argument in Parts III-C and III-D that

the Internet may be treated the same as telephone or mail

communications: “[G]iven Internet speakers’ inability to

control the geographic location of their audience, expecting

them to bear the burden of controlling the recipients of

their speech . . . may be entirely too much to ask.” Id. As

a result, Justice O’Connor advocated the adoption of a

national standard for regulating Internet obscenity. She

noted that Supreme Court precedents do not forbid such a

result, and argued that such a standard would be no more

difficult or unrealistic to implement than the standard

created for the entire state of California in Miller. Id. at

1715. 

Justice Breyer filed an opinion concurring in part and in

the judgment in which he argued that “Congress intended

the statutory word ‘community’ to refer to the Nation’s

adult community taken as a whole.” Id. (Breyer, J.,

concurring). This standard would serve the purpose, argued

Justice Breyer, of avoiding the difficult question of

constitutionality under the First Amendment while

experiencing no more “regional variation” than is “inherent

in a system that draws jurors from a local geographic area.”

Id. at 1716. 

Justice Kennedy filed an opinion concurring in the

judgment, in which he was joined by Justices Souter and

Ginsburg. Although Justice Kennedy agreed with us that a

community standards factor when applied to the Internet is

a greater burden on speech than when applied to the mails

or to telephones, he did not agree that the extent of that

burden could be ascertained without analyzing the scope of

COPA’s other provisions. See id. at 1719-20 (Kennedy, J.,

concurring). More specifically, Justice Kennedy felt that we

should consider the effect of the provisions limiting COPA’s

scope to speech used for commercial purposes and to

speech that is harmful to minors when taken “as a whole.”

See id. at 1720-21. Only after these provisions are

analyzed, argued Justice Kennedy, can the true effect of

varying community standards be evaluated, and the

question of overbreadth be properly addressed. 

Finally, Justice Stevens authored a dissenting opinion, in

which he reiterated our concerns expressed in Reno III that

19
COPA’s community standards factor was itself sufficient to

render the statute constitutionally overbroad because

communication on the Internet (unlike that through the

mails or telephones) may not be restricted geographically.

This fact, Justice Stevens claimed, was sufficient to

invalidate COPA, particularly in light of the fact that many

of the “limiting provisions” (i.e., the prurient interest, the

patently offensive and the serious value prongs of the

statute) mentioned by Justices Thomas and Kennedy apply

only to minors, thereby burdening protected material which

should be available to adults. See id. at 1726-27 (Stevens,

J., dissenting). 

Accordingly, on remand, we must again review the

District Court’s grant of a preliminary injunction in favor of

the plaintiffs. This time, however, we must do so in light of

the Supreme Court’s mandate that the community

standards language is not by itself a sufficient ground for

holding COPA constitutionally overbroad. This direction

requires an independent analysis of the issues addressed

by the District Court in its original opinion. To assist us in

this task, we asked the parties for additional submissions

addressed to the opinion of the Supreme Court and to

authorities filed subsequent to that opinion and since we

last addressed COPA in Reno III. 

II.

As mentioned above, in order to grant a motion for a

preliminary injunction, a district court must address the

following four factors: 

(1) whether the movant has shown a reasonable

probability of success on the merits; (2) whether the

movant will be irreparably harmed by denial of the

relief; (3) whether granting preliminary relief will result

in even greater harm to the nonmoving party; and (4)

whether granting the preliminary relief will be in the

public interest. 

Allegheny Energy, 171 F.3d at 158 (citing ACLU v. Black

Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471, 1477 n.2 (3d

Cir. 1996) (en banc)). We review the District Court’s grant

of a preliminary injunction in favor of the ACLU to

20
determine “whether the court abused its discretion,

committed an obvious error in applying the law, or made a

clear mistake in considering the proof.” In re Assets of

Martin, 1 F.3d 1351, 1357 (3d Cir. 1993) (citing

Philadelphia Marine Trade Ass’n v. Local 1291, 909 F.2d

754, 756 (3d Cir. 1990), cert. denied, 498 U.S. 1083 (1991)).10

The most significant and, indeed, the dispositive prong of

the preliminary injunction analysis in the instant appeal is

whether the plaintiffs bore their burden of establishing that

they had a reasonable probability of succeeding on the

merits — that is, whether COPA runs afoul of the First

Amendment to the United States Constitution.11

We hold that the District Court did not abuse its

discretion in granting the preliminary injunction, nor did it

err in ruling that the plaintiffs had a probability of

prevailing on the merits of their claim inasmuch as COPA

cannot survive strict scrutiny. By sustaining that holding,

as we do, we would not then be obliged to answer the

question of whether COPA is overly broad or vague.

However, in order to “touch all bases” on this remand, we

will nevertheless address the overbreadth doctrine with

10. We have jurisdiction pursuant to the Supreme Court’s order

remanding the case to us for further proceedings. See Ashcroft, 122 S.

Ct. at 1714. The plaintiffs have standing to sue because they could all

reasonably fear prosecution under COPA, as their Web sites contained

material that could be considered harmful to minors under the statute.

Reno III, 217 F.3d at 171 (citing Reno II, 131 F. Supp. 2d at 479). 

11. In addition to being the only portion of the preliminary injunction

standard addressed by the Supreme Court in its majority opinion or by

the parties in their briefs before this Court, the probability of success

prong is the only one about which any real debate exists. 

In our earlier opinion in this case, we made clear that “Web publishers

would most assuredly suffer irreparable harm” under COPA, that

preliminary injunctive relief will not result in greater harm to the

Government, as “COPA’s threatened constraint on constitutionally

protected free speech far outweighs the damage that would be imposed

by our failure to affirm this preliminary injunction,” and that preliminary

injunctive relief is in the public interest because “ ‘neither the

Government nor the public generally can claim an interest in the

enforcement of an unconstitutional law.’ ” Reno III, 217 F.3d at 180-81

(citation omitted). 

21
respect to COPA and the related doctrine of vagueness. See

infra Part II.B.12 In doing so, we hold that COPA is similarly

deficient in that aspect as well.

A. Strict Scrutiny

We turn first, however, to the question of whether COPA

may withstand strict scrutiny. Strict scrutiny requires that

a statute (1) serve a compelling governmental interest; (2)

be narrowly tailored to achieve that interest; and (3) be the

least restrictive means of advancing that interest. Sable,

492 U.S. at 126.

1. Compelling Interest

The Supreme Court has held that “there is a compelling

interest in protecting the physical and psychological wellbeing of minors.” Id. (citing Ginsberg, 390 U.S. at 639-40).

The parties agree that the Government’s stated interest in

protecting minors from harmful material online is

compelling. This being so, we proceed to the next question

of whether COPA is narrowly tailored to meet that interest.

2. Narrowly Tailored

We hold that the following provisions of COPA are not

narrowly tailored to achieve the Government’s compelling

interest in protecting minors from harmful material and

therefore fail the strict scrutiny test: (a) the definition of

“material that is harmful to minors,” which includes the

concept of taking “as a whole” material designed to appeal

to the “prurient interest” of minors; and material which

(when judged as a whole) lacks “serious literary” or other

“value” for minors; (b) the definition of “commercial

purposes,” which limits the reach of the statute to persons

“engaged in the business” (broadly defined) of making

communications of material that is harmful to minors; and

(c) the “affirmative defenses” available to publishers, which

require the technological screening of users for the purpose

of age verification. 

12. We note that much of our overbreadth analysis overlaps with much

of the strict scrutiny analysis we discuss below. 

22
(a) “Material Harmful to Minors”

We address first the provision defining “material harmful

to minors.”

13 Because COPA’s definition of harmful material

is explicitly focused on minors, it automatically impacts

non-obscene, sexually suggestive speech that is otherwise

protected for adults.14 The remaining constitutional

question, then, is whether the definition’s subsets of

“prurient interest” and lacking “serious . . . value for

minors” are sufficiently narrowly tailored to satisfy strict

scrutiny in light of the statute’s stated purpose. We address

each of these subsets.

COPA limits its targeted material to that which is

designed to appeal to the “prurient interest” of minors. It

leaves that judgment, however, to “the average person,

applying contemporary community standards” and “taking

the material as a whole.” 

As discussed in our initial opinion on the matter, when

contemporary community standards are applied to the

Internet, which does not permit speakers or exhibitors to

limit their speech or exhibits geographically, the statute

effectively limits the range of permissible material under the

statute to that which is deemed acceptable only by the

most puritanical communities. This limitation by definition

burdens speech otherwise protected under the First

Amendment for adults as well as for minors living in more

tolerant settings. See Reno III, 217 F.3d at 173-80. 

This burden becomes even more troublesome when those

evaluating questionable material consider it “as a whole” in

judging its appeal to minors’ prurient interests. As Justice

Kennedy suggested in his concurring opinion, it is

“essential to answer the vexing question of what it means

to evaluate Internet material ‘as a whole,’ when everything

on the Web is connected to everything else.” Ashcroft, 122

13. We note that the text of the statute reads “material that is harmful

to minors.” 47 U.S.C. § 231(e)(6) (emphasis added). For purposes of

brevity, we often refer to this phrase as “material harmful to minors.” 

14. Obscene materials are not protected under the First Amendment.

See, e.g., Ashcroft, 122 S. Ct. at 1704 (“[O]bscene speech enjoys no First

Amendment protection.”). 

23
S. Ct. at 1721 (internal citation omitted). We agree with

Justice Kennedy’s suggestion, and consider this issue here.

While COPA does not define what is intended to be

judged “as a whole,” the plain language of COPA’s “harmful

material” definition describes such material as “any

communication, picture, image file, article, recording,

writing, or other matter of any kind” that satisfies the three

prongs of the “material harmful to minors” test: prurient

interest, patently offensive, and serious value. 47 U.S.C.

§ 231(e)(6) (emphasis added). In light of the particularity

and specificity of Congress’s language, Congress had to

mean that each individual communication, picture, image,

exhibit, etc. be deemed “a whole” by itself in determining

whether it appeals to the prurient interests of minors,

because that is the unmistakable manner in which the

statute is drawn. 

The taken “as a whole” language is crucial because the

First Amendment requires the consideration of context. As

Justice Kennedy observed in his concurring opinion in

Ashcroft, the application of the constitutional taken “as a

whole” requirement is complicated in the Internet context:

“It is unclear whether what is to be judged as a whole is a

single image on a Web page, a whole Web page, an entire

multipage Web site, or an interlocking set of Web sites.”

Ashcroft, 122 S. Ct. at 1717. As the Supreme Court has

recently noted:

[It is] an essential First Amendment rule [that t]he

artistic merit of a work does not depend on the

presence of a single explicit scene. . . . Under Miller,

the First Amendment requires that redeeming value be

judged by considering the work as a whole. Where the

scene is part of the narrative, the work itself does not

for this reason become obscene, even though the scene

in isolation might be offensive. 

Ashcroft v. Free Speech Coalition, ___ U.S. ___, 122 S. Ct.

1389, 1401 (2002) (citation omitted). 

Yet, here the plain meaning of COPA’s text mandates

evaluation of an exhibit on the Internet in isolation, rather

than in context. As such, COPA’s taken “as a whole”

24
definition surely fails to meet the strictures of the First

Amendment. 

By limiting the material to individual expressions, rather

than to an expanded context, we would be hard-pressed to

hold that COPA was narrowly tailored to achieve its

designed purpose. For example, one sexual image, which

COPA may proscribe as harmful material, might not be

deemed to appeal to the prurient interest of minors if it

were to be viewed in the context of an entire collection of

Renaissance artwork. However, evaluating just that one

image or picture or writing by itself rules out a context

which may have alleviated its prurient appeal. As a result,

individual communications that may be a integral part of

an entirely non-prurient presentation may be held to violate

COPA, despite the fact that a completely different result

would obtain if the entire context in which the picture or

communication was evaluated “as a whole.” 

Because we view such a statute, construed as its own

text unquestionably requires, as pertaining only to single

individual exhibits, COPA endangers a wide range of

communications, exhibits, and speakers whose messages

do not comport with the type of harmful materials

legitimately targeted under COPA, i.e, material that is

obscene as to minors. See Ginsberg, 390 U.S. at 639-43.

Accordingly, while COPA penalizes publishers for making

available improper material for minors, at the same time it

impermissibly burdens a wide range of speech and exhibits

otherwise protected for adults. Thus, in our opinion, the

Act, which proscribes publication of material harmful to

minors, is not narrowly tailored to serve the Government’s

stated purpose in protecting minors from such material.

Lastly, COPA’s definition of “material that is harmful to

minors” only permits regulation of speech that when “taken

as a whole, lacks serious literary, artistic, political, or

scientific value for minors.” 47 U.S.C. § 231(e)(6)(C)

(emphasis added). COPA defines the term minor as “any

person under 17 [seventeen] years of age.” Id. § 231(e)(7).15

15. The term “minor” appears in both the “prurient interest” and

“patently offensive” prongs of COPA’s “material that is harmful to

minors” definition. See statutory text supra Part I.B.2. The problems with

the definition of minor which we identify in this section are applicable to

both these two prongs. As such, these prongs are also constitutionally

infirm on that ground. 

25
The statute does not limit the term minor in any way, and

indeed, in its briefing, the Government, in complete

disregard of the text, contends that minor means a

“normal, older adolescent.” Orig. Gov’t Br. at 32; Gov’t Br.

on Remand at 27-28; Gov’t Reply Br. on Remand at 4-5. 

We need not suggest how the statute’s targeted

population could be more narrowly defined, because even

the Government does not argue, as it could not, that

materials that have “serious literary, artistic, political or

scientific value” for a sixteen-year-old would have the same

value for a minor who is three years old. Nor does any party

argue, despite Congress’s having targeted and included all

minors seventeen or under, that pre-adolescent minors (i.e.,

ages two, three, four, etc.) could be patently offended by a

“normal or perverted sexual act” or have their “prurient

interest” aroused by a “post-pubescent female breast,” or by

being exposed to whatever other material may be designed

to appeal to prurient interests. 

The term “minor,” as Congress has drafted it, thus

applies in a literal sense to an infant, a five-year old, or a

person just shy of age seventeen. In abiding by this

definition, Web publishers who seek to determine whether

their Web sites will run afoul of COPA cannot tell which of

these “minors” should be considered in deciding the

particular content of their Internet postings. Instead, they

must guess at which minor should be considered in

determining whether the content of their Web site has

“serious . . . value for [those] minors.” 47 U.S.C.

§ 231(e)(6)(C). Likewise, if they try to comply with COPA’s

“harmful to minors” definition, they must guess at the

potential audience of minors and their ages so that the

publishers can refrain from posting material that will

trigger the prurient interest, or be patently offensive with

respect to those minors who may be deemed to have such

interests. 

The Government has argued that “minors” should be

read to apply only to normal, older adolescents. We realize

as a pragmatic matter that some pre-adolescent minors

may, by definition, be incapable of possessing a prurient

interest. It is not clear, however, that the Government’s

proffered definition meets Congress’s intended meaning for

26
the term “minor” with respect to the “patently offensive”

and “serious value” prongs. Furthermore, Congress has

identified as objects of its concern children who cannot be

described as “older” adolescents:

Moreover, because of sophisticated, yet easy to use

navigating software, minors who can read and type are

capable of conducting Web searches as easily as

operating a television remote. While a four-year old

may not be as capable as a thirteen year old, given the

right tools (e.g., a child trackball and browser software)

each has the ability to ‘surf ’ the Net and will likely be

exposed to harmful material. 

H.R. REP. NO. 105-775, at 9-10 (emphasis added). Moreover,

the statute, if meant to pertain only to normal, older

adolescents (as the Government claims it does), does not by

its own definition restrict its application to older

adolescents, although we assume that Congress could have

defined that universe in that manner. 

Because the plain meaning of the statute’s text is evident,

we decline to rewrite Congress’s definition of “minor.”

16 We

16. The Government has cited cases from two other Circuits in support

of its proffered narrowing construction of “minor.” We do not find these

analyses helpful. 

In American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990), cert.

denied, 500 U.S. 942 (1991), the Eleventh Circuit upheld a Georgia law

restricting the display of material “harmful to minors” in light of the fact

that the use of blinder racks would satisfy the statute’s requirement. Id.

at 1508-09. In analyzing the “harmful to minors” test contained in that

statute, the Eleventh Circuit interpreted the Supreme Court’s opinion in

Pope v. Illinois, 481 U.S. 497 (1987), to “teach[ ] that if any reasonable

minor, including a seventeen-year-old, would find serious value, the

material is not ‘harmful to minors.’ ” American Booksellers, 919 F.2d at

1504-05. 

We do not think that Pope leads to the conclusions that the Eleventh

Circuit drew. In Pope, the Court explained that, under the “serious

value” prong of the Miller test for obscenity, “The proper inquiry is not

whether an ordinary member of any given community would find serious

literary, artistic, political, or scientific value in allegedly obscene

material, but whether a reasonable person would find such value in the

material, taken as a whole.” Pope, 481 U.S. at 500-01 (emphasis added).

27
would note, however, that even if we accepted the

Government’s argument, the term “minors” would not be

tailored narrowly enough to satisfy strict scrutiny. 

Regardless of what the lower end of the range of relevant

minors is, Web publishers would face great uncertainty in

deciding what minor could be exposed to its publication, so

It does seem logical that if Pope requires a reasonable person standard

for the “serious value” prong of the Miller test, then an analogous

“serious value for minors” prong of a “harmful to minors” test would look

to the value for a “reasonable minor.” It does not follow, however, that

the “reasonable minor” must be judged by reference to minors at the

upper end of the spectrum of ages encompassed in the term “minor,”

unless the statute is drawn in that particular manner. We are not

persuaded that COPA can be read and enforced that way. 

The Fourth Circuit’s opinion in American Booksellers Ass’n v. Virginia,

882 F.2d 125 (4th Cir. 1989), cert. denied, 494 U.S. 1056 (1990), is

likewise inapplicable. That case dealt with the interpretation of a Virginia

statute prohibiting the display of sexually explicit materials to “juveniles

[less than eighteen years of age].” Id. at 127 (citing Va. Code § 18.2-

390(6)(c) (1982 & Supp. 1987)). The Fourth Circuit adopted the Virginia

Supreme Court’s interpretation of the state statute: “The Virginia Court

then concluded that the [“serious value”] standard [of the Virginia

statute] should be applied as it affects a ‘legitimate minority of normal,

older adolescents.’ ” Id. (citing Commonwealth v. American Booksellers

Ass’n, 372 S.E.2d 618, 624 (Va. 1988)). Of course, the Virginia Supreme

Court’s interpretation of the state statute (a question that had been

certified to the Virginia Court by the Supreme Court, see Virginia v.

American Booksellers Ass’n, 484 U.S. 383 (1988)), is not binding on our

interpretation of COPA. Hence, there is no reason to adopt or be

persuaded by the statutory construction of the Virginia Supreme Court

in our construction of COPA. 

The Fourth Circuit has recently certified to the Virginia Supreme Court

two questions relating to the scope of a 1999 amendment to the Virginia

statute at issue in American Booksellers Ass’n v. Virginia. See PSINet, Inc.

v. Chapman, 317 F.3d 413 (4th Cir. 2003) (citing Va. Code § 18.2-391,

1999 Va. Act ch. 936)). Subsequent to oral argument, the Government

submitted a letter pursuant to Federal Rule of Appellate Procedure 28(j)

calling to our attention this order pertaining to the constitutionality of

the 1999 amendment, which extends the regulation of sexually explicit

material deemed “harmful to juveniles” to the Internet context. For the

reasons we have identified, the Fourth Circuit’s certification order has no

bearing on our interpretation of COPA. 

28
that a publisher could predict, and guard against, potential

liability. Even if the statutory meaning of “minor” were

limited to minors between the ages of thirteen and

seventeen, Web publishers would still face too much

uncertitude as to the nature of material that COPA

proscribes. 

We do not suggest how Congress could have tailored its

statute—that is not our function. We do no more than

conclude that the use of the term “minors” in all three

prongs of the statute’s definition of “material harmful to

minors” is not narrowly drawn to achieve the statute’s

purpose—it is not defended by the Government in the exact

terms of the statute, and does not lend itself to a

commonsense meaning when consideration is given to the

fact that minors range in age from infants to seventeen

years. Therefore, even if we were to accept the narrowing

construction that the Government proposes — and we do

not — COPA’s definition of the term “minor,” viewed in

conjunction with the “material harmful to minors” test, is

not tailored narrowly enough to satisfy the First

Amendment’s requirements.

(b) “Commercial Purposes”

COPA’s purported limitation of liability to persons making

communications “for commercial purposes” does not

narrow the reach of COPA sufficiently. Instead, COPA’s

definitions subject too wide a range of Web publishers to

potential liability. As the District Court observed, “There is

nothing in the text of COPA . . . that limits its applicability

to so-called commercial pornographers only.” Reno II, 31 F.

Supp. 2d at 480. Indeed, as we read COPA, it extends to

any Web publisher who makes any communication “for

commercial purposes.” 47 U.S.C. § 231(a)(1). 

The statute includes within “commercial purposes” any

Web publisher who meets COPA’s broad definition of being

“engaged in the business” of making such communications.

Id. § 231(e)(2)(A). The definition of “engaged in the business”

applies to any person whose communication “includes any

material that is harmful to minors” and who “devotes time

. . . to such activities, as a regular course of such person’s

29
trade or business, with the objective of earning a profit,” if

that person “knowingly causes [or solicits] the material that

is harmful to minors to be posted on the World Wide Web.”

Id. § 231(e)(2)(B) (emphasis added). 

Based on this broad definition of “engaged in the

business,” we read COPA to apply to Web publishers who

have posted any material that is “harmful to minors” on

their Web sites, even if they do not make a profit from such

material itself or do not post such material as the principal

part of their business. Under the plain language of COPA,

a Web publisher will be subjected to liability if even a small

part of his or her Web site displays material “harmful to

minors.”17

Moreover, the definition of “commercial purposes” further

expands COPA’s reach beyond those enterprises that sell

services or goods to consumers, including those persons

who sell advertising space on their otherwise noncommercial Web sites. See Reno II, 31 F. Supp. 2d at 487

(Finding of Fact ¶ 33). Thus, the “engaged in the business”

definition would encompass both the commercial

pornographer who profits from his or her online traffic, as

well as the Web publisher who provides free content on his

or her Web site and seeks advertising revenue, perhaps

only to defray the cost of maintaining the Web site.18 See

17. As we have explained earlier, see Part II.A.2(a), supra, COPA’s

definition of material refers to any single “communication, picture,

image, graphic image file, article, recording, writing, or other matter of

any kind.” 47 U.S.C. § 231(e)(6). 

18. We do not here confront the question of statutory interpretation

whether the term “profit,” in the context of COPA’s definition of “engaged

in the business,” includes only those Web publishers seeking to earn

economic profits or also includes non-profit organizations or charities

that seek to obtain revenue or contributions — though not economic

profits — from their Web sites. As one amicus brief notes, Congress did

not exempt non-profit organizations as designated under the Internal

Revenue Code. See Br. of Amici Curiae American Society of Journalists

and Authors et al. at 6-7. If the term “profit,” (and therefore the term

“engaged in the business”) includes Web publishers that are non-profit

organizations, the scope of persons covered by COPA would be greatly

expanded. Because of the large number of commercial entities that

maintain Web sites (as found by the District Court), the scope of COPA,

regardless of whether it covers non-profits, is in any event far broader

than the core of commercial pornographers and the like that the

Government has argued that COPA is intended to target. 

30
also Ashcroft, 122 S. Ct. at 1721 (Kennedy, J., concurring)

(“Indeed, the plain text of the Act does not limit its scope to

pornography that is offered for sale; it seems to apply even

to speech provided for free, so long as the speaker merely

hopes to profit as an indirect result.”). The latter model is

a common phenomenon on the Internet. See Reno II, 31 F.

Supp. 2d at 484 (Findings of Fact ¶¶ 23, 30). This

expansive definition of “engaged in the business” therefore

includes a large number of Web publishers. Indeed, the

District Court in its findings of fact cited to testimony that

approximately one-third of the 3.5 million global Web sites

(existing at that time) are “commercial,” or “intend[ed] to

make a profit.” Id. at 486 (Finding of Fact ¶ 27).

Contrary to our reading and understanding of COPA, the

Government contends that COPA’s definition of “engaged in

the business” limits liability to those persons who publish

material that is harmful to minors “as a regular course of

such person’s business or trade,” 47 U.S.C. § 231(e)(2)(B),

claiming that this qualification limits the coverage of COPA.

Based on this language, the Government argues that

“COPA by its terms covers only those ‘harmful to minors’

communications that are made by a person as a normal

part of his or her for-profit business.” Gov’t Br. on Remand

at 36 (internal quotation marks added). Indeed, the

Government contends that COPA “covers only those

communications that have a substantial connection to the

regular online marketing of material that is harmful to

minors.” Id. at 36-37 (emphasis added). 

We do not find the Government’s argument persuasive.

COPA’s use of the phrase “regular course” does not narrow

the scope of speech covered because it does not place any

limitations on the amount, or the proportion, of a Web

publisher’s posted content that constitutes such material.

Thus, even if posted material that is harmful to minors

constitutes only a very small, or even infinitesimal, part of

a publisher’s entire Web site, the publisher may still be

subject to liability. For example, if a Web site whose content

deals primarily with medical information, but also

“regularly” publishes a bi-weekly column devoted to sexual

matters which could be deemed “harmful to minors,” the

publisher might well be subject to criminal liability under

31
COPA. Although such a Web site primarily publishes

medical information that is not “harmful to minors,” the biweekly column, according to the Government’s reading of

COPA, would be a publication in “regular course.” 

In sum, while the “commercial purposes” limitation

makes the reach of COPA less broad than its predecessor,

inasmuch as the Communications Decency Act (CDA) was

not limited to commercial entities, see Reno I, 521 U.S. at

877, COPA’s definition of “commercial purposes”

nevertheless imposes content restrictions on a substantial

number of “commercial,” non-obscene speakers in violation

of the First Amendment. We are satisfied that COPA is not

narrowly tailored to proscribe commercial pornographers

and their ilk, as the Government contends, but instead

prohibits a wide range of protected expression.

(c) Affirmative Defenses

The Government argues that COPA’s burdens are limited

and reasonable, and points to COPA’s affirmative defenses

in support of the statute’s constitutionality. We examine

whether the affirmative defenses in COPA serve to tailor the

statute narrowly, as the Government asserts.

COPA’s affirmative defenses shield Web publishers from

liability under the statute if they, in good faith, restrict

access to material deemed harmful to minors. COPA

provides as follows:

It is an affirmative defense to prosecution under this

section that the defendant, in good faith, has restricted

access by minors to material that is harmful to minors

—

(A) by requiring use of a credit card, debit account,

adult access code, or adult personal identification

number;

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

or

(C) by any other reasonable measures that are

feasible under available technology.

32
47 U.S.C. § 231(c)(1).19

The District Court held that COPA’s affirmative defenses

burdened otherwise protected adult speech in a way that

prevented the statute from surviving strict scrutiny. In

determining that the application of these defenses would

unduly burden protected adult speech, the District Court

concluded that 

Evidence presented to this Court is likely to establish

at trial that the implementation of credit card or adult

verification screens in front of material that is harmful

to minors may deter users from accessing such

materials and that the loss of users of such material

may affect the speakers’ economic ability to provide

such communications. The plaintiffs are likely to

establish at trial that under COPA, Web site operators

and content providers may feel an economic

disincentive to engage in communications that are or

may be considered to be harmful to minors and thus,

may self-censor the content of their sites. Further, the

uncontroverted evidence showed that there is no way

to restrict the access of minors to harmful materials in

chat rooms and discussion groups, which the plaintiffs

assert draw traffic to their sites, without screening all

users before accessing any content, even that which is

not harmful to minors, or editing all content before it

is posted to exclude material that is harmful to minors.

I conclude that based on the evidence presented to

date, the plaintiffs have established a substantial

likelihood that they will be able to show that COPA

imposes a burden on speech that is protected for

adults. 

19. The District Court found, and the Government does not argue

otherwise, that the “digital certificate” and “other reasonable measures”

are not effective or feasible: “The parties’ expert witnesses agree that at

this time, while it is technologically possible, there is no certificate

authority that will issue a digital certificate that verifies a user’s age. . . .

The plaintiffs presented testimony that there are no other reasonable

alternatives that are technologically feasible at this time to verify age

online. . . . The defendant did not present evidence to the contrary.” Reno

II, 31 F. Supp. 2d. at 487-88 (Finding of Fact ¶ 37) (emphasis added)

(internal citations omitted). 

33
Reno II, 31 F. Supp. 2d at 495 (citations omitted). 

The Government maintains that the District Court

overstated the burdens on protected speech created by

utilization of COPA’s affirmative defenses. The record and

our own limited standard of review, however, belie that

claim. 

First, the actual effect on users as a result of COPA’s

affirmative defenses, which the Government minimizes, was

determined by the District Court in its factual findings,

after hearing testimony from both parties. Both the expert

offered by the plaintiffs and one of the experts proffered by

the Government testified that users could be deterred from

accessing the plaintiffs’ Web sites as a result of COPA’s

affirmative defenses. The plaintiffs’ expert went on to testify

that “economic harm . . . would result from loss of traffic.”

Id. at 491 (Finding of Fact ¶ 61). 

Although the Government presented its own expert who

testified that “COPA would not impose an unreasonable

economic burden . . . on the seven Web sites of the

plaintiffs,” the District Court, in exercising its fact-finding

function, determined that “plaintiffs have shown that they

are likely to convince the Court that implementing the

affirmative defenses in COPA will cause most Web sites to

lose some adult users to the portions of the sites that are

behind screens.” Id. at 492 (Findings of Fact ¶¶ 61-62). We

cannot say, nor has the Government claimed, that the

District Court’s factual determination is clearly erroneous.

COPA’s restrictions on speech, as the District Court has

found and as we agree, are not, as the Government has

argued, analogous to the incidental restrictions caused by

slow response times, broken links, or poor site design that

“already inhibit a user’s . . . experience.” Orig. Gov’t Br. at

42 (citation omitted); Gov’t Br. on Remand at 40-41

(citation omitted). Requiring a user to pay a fee for use of

an adult verification service or to enter personal

information prior to accessing certain material constitutes

a much more severe burden on speech than any technical

difficulties, which are often repairable and cause only

minor delays. 

34
We agree with the District Court’s determination that

COPA will likely deter many adults from accessing

restricted content, because many Web users are simply

unwilling to provide identification information in order to

gain access to content, especially where the information

they wish to access is sensitive or controversial.20 People

may fear to transmit their personal information, and may

also fear that their personal, identifying information will be

collected and stored in the records of various Web sites or

providers of adult identification numbers.21

The Supreme Court has disapproved of content-based

restrictions that require recipients to identify themselves

affirmatively before being granted access to disfavored

speech, because such restrictions can have an

impermissible chilling effect on those would-be recipients.22

20. The Government’s argument to the contrary is not persuasive. Its

reliance on the success of online publishers such as The Wall Street

Journal, as well as online merchants such as Amazon.com, is misplaced.

The Government noted that those publishers’ and merchants’ Web sites

require persons to provide personal information. See Gov’t Br. on

Remand at 11. Such sites, however, are not analogous to Internet sites

that provide speech that is protected for adults that might nonetheless

be harmful to minors. As the District Court noted in its findings of fact,

certain of the plaintiffs testified that their Web sites contain controversial

or sensitive information that adult readers would be deterred from

obtaining if they were required to register or otherwise identify

themselves. See Reno II, 31 F. Supp. 2d at 485-86 (Findings of Fact

¶¶ 25-26). 

21. The Government asserts that 47 U.S.C. § 231(d)(1), which limits the

disclosure of “any information collected for the purposes of restricting

access” to material harmful to minors without prior written consent

(subject to exceptions), constitute “substantial privacy protections.” Gov’t

Br. on Remand at 41. But the statute does not appear to impose any

penalties on those who fail to comply with the privacy protection in

§ 231(d)(1). Furthermore, the existence of the statutory privacy protection

does not negate the likelihood that adults will be chilled in accessing

speech protected for them; adults may reasonably fear that their

information will be disclosed, this provision notwithstanding. 

22. See, e.g., Lamont v. Postmaster General, 381 U.S. 301 (1965) (holding

that federal statute requiring Postmaster to halt delivery of communist

propaganda unless affirmatively requested by addressee violated First

Amendment); Denver Area Educ. Telecomms. Consortium v. FCC, 518

35
Second, the affirmative defenses do not provide the Web

publishers with assurances of freedom from prosecution. As

the Supreme Court noted in Free Speech Coalition, “The

Government raises serious constitutional difficulties by

seeking to impose on the defendant the burden of proving

his speech is not unlawful.” Free Speech Coalition, 122 S.

Ct. at 1404. Although the criminal penalties under the

federal statute concerning virtual child pornography, at

issue in Free Speech Coalition, were more severe than the

penalties under COPA, the logic is applicable: “An

affirmative defense applies only after prosecution has

begun, and the speaker must himself prove . . . that his

conduct falls within the affirmative defense.” Id.

Lastly, none of the display-restriction cases relied on by

the Government are apposite here, as each involved the use

of blinder racks to shield minors from viewing harmful

material on display. Orig. Gov’t Br. at 43-44; Gov’t Br. on

Remand at 44-45; Gov’t Reply Br. on Remand at 13-14.23

U.S. 727, 732-33 (1996) (holding unconstitutional a federal law requiring

cable operators to allow access to sexually explicit programming only to

those subscribers who request access to the programming in advance

and in writing). Cf. American Library Ass’n v. United States, 201 F. Supp.

2d 401, 406 (E.D. Pa.) (three-judge court) (holding as unconstitutional

federal statute that conditions receipt of federal funds by public libraries

on use of filtering software because, inter alia, provision requiring adults

to request library to disable filters to access protected speech imposed

too great a burden), prob. juris. noted, 123 S. Ct. 551 (2002). 

23. See, e.g., Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996)

(upholding statute banning sale of material harmful to minors in

unsupervised sidewalk vending machines), cert. denied, 520 U.S. 1117

(1997); Webb, 919 F.2d 1493 (11th Cir. 1990) (upholding statute making

it unlawful to “exhibit, expose, or display in public at newsstands or any

other business or commercial establishment or at any other public place

frequented by minors” material harmful to them); Upper Midwest

Booksellers Ass’n v. City of Minneapolis, 780 F.2d 1389 (8th Cir. 1985)

(upholding an ordinance requiring an opaque cover on and the sealing of

any material deemed harmful to minors and displayed for commercial

purposes); M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir. 1983)

(upholding a blinder rack ordinance); Davis-Kidd Booksellers, Inc. v.

McWherter, 866 S.W.2d 520 (Tenn. 1993) (upholding statute restricting

the display for sale of material harmful to minors “anywhere minors are

lawfully admitted”); American Booksellers Ass’n v. Rendell, 481 A.2d 919

(Pa. Super. 1984) (upholding statute prohibiting display of sexually

explicit materials where minors could see them). 

36
The use of “blinder racks,” or some analogous device, does

not create the same deterrent effect on adults as would

COPA’s credit card or adult verification screens. Blinder

racks do not require adults to compromise their anonymity

in their viewing of material harmful to minors, nor do they

create any financial burden on the user. Moreover, they do

not burden the speech contained in the targeted

publications any more than is absolutely necessary to

shield minors from its content. We cannot say the same

with respect to COPA’s affirmative defenses.

The effect of the affirmative defenses, as they burden

“material harmful to minors” which is constitutionally

protected for adults, is to drive this protected speech from

the marketplace of ideas on the Internet. This type of

regulation is prohibited under the First Amendment. As the

Supreme Court has recently said, “[S]peech within the

rights of adults to hear may not be silenced completely in

an attempt to shield children from it.” Free Speech

Coalition, 122 S. Ct at 1402 (citation omitted). COPA,

though less broad than the CDA, “effectively resembles [a]

ban,” on adults’ access to protected speech; the chilling

effect occasioned by the affirmative defenses results in the

“unnecessarily broad suppression of speech addressed to

adults.” Reno I, 521 U.S. at 875.

3. Least Restrictive Means

As we have just explained, COPA is not narrowly tailored

and as such fails strict scrutiny. We are also satisfied that

COPA does not employ the “least restrictive means” to effect

the Government’s compelling interest in protecting minors.

The Supreme Court has stated that “[i]f a less restrictive

alternative would serve the Government’s purpose, the

legislature must use that alternative.” United States v.

Playboy Entertainment Group, 529 U.S. 803, 813 (2000);

see also Reno I, 521 U.S. at 874 (“[The CDA’s Internet

indecency provisions’] burden on adult speech is

unacceptable if less restrictive alternatives would be at

least as effective in achieving the legitimate purpose that

the statute was enacted to serve”); Sable, 492 U.S. at 126.

37
The District Court determined, based on its findings of

fact, that COPA would be of limited effectiveness in

achieving its aim. See Reno II, 31 F. Supp. 2d at 496 (COPA

has “problems . . . with efficaciously meeting its goal.”). To

reach that conclusion, the District Court relied on its

findings that (1) under COPA children may still be able to

access material deemed harmful to them on “foreign Web

sites, non-commercial sites, and . . . via protocols other

than http,” id. at 496; see also id. at 482-84, 492 (Findings

of Fact ¶¶ 7-8, 19-20, 66); and (2) that children may be able

to obtain credit cards — either their parents’ or their own

— legitimately and so circumvent the screening

contemplated by COPA’s affirmative defenses. See id. at 489

(Finding of Fact ¶ 48). 

We first examine the alternative of blocking and filtering

technology. The District Court described this technology as

follows:

[B]locking or filtering software may be used to block

Web sites and other content on the Internet that is

inappropriate for minors. Such technology may be

downloaded and installed on a user’s home computer

at a price of approximately $40.00. Alternatively, it

may operate on the user’s ISP [(Internet Service

Provider)]. Blocking technology can be used to block

access by minors to whole sites or pages within a site.

Id. at 492 (Finding of Fact ¶ 65).24 The District Court

24. The Report of the House Committee on Commerce, prepared in

support of COPA, provides a more detailed discussion of this technology:

In general, blocking or filtering software programs work in

conjunction with Internet browsers such as Netscape Navigator and

Microsoft’s Internet Explorer, and are either installed directly onto

individual computers or onto a host server used with a network of

computers. Blocking or filtering software could also be installed at

the site of the Internet access provider. Software to block access to

websites has existed for many years . . . . 

In order to block Internet sites, a software vendor identifies

categories of material to be restricted and then configures the

software to block sites containing those categories of speech. Some

software blocking vendors employ individuals who browse the

38
concluded that blocking and filtering technology, although

imperfect, “may be at least as successful as COPA would be

in restricting minors’ access to harmful material online

without imposing the burden on constitutionally protected

speech that COPA imposes on adult users.” Id. at 497.

Indeed, the District Court found that blocking and filtering

technology, if installed by parents, would shield minors

from harmful Internet communication occurring within a

broader range of venues than that covered by COPA:

“Blocking and filtering software will block minors from

accessing harmful to minors materials posted on foreign

Web sites, non-profit Web sites, and newsgroups, chat, and

other materials that utilize a protocol other than HTTP.” Id.

at 492 (Finding of Fact ¶ 65).

The Government, however, argues that filtering software

is not a viable means of protecting children from harmful

material online because it is not nearly as effective as COPA

at protecting minors. The Government offers the following

three reasons for this conclusion: (1) filtering software is

voluntary — it transfers the burden of protecting children

from the source of the harmful material, i.e, the Web

publishers, to the potential victims and their parents; (2)

filtering software is often both over- and underinclusive of

targeted material; and (3) it is more effective to screen

material “prior to it being sent or posted to minors” on the

Internet. See Gov’t Br. on Remand at 47.25

Internet for sites to block, while others use automated searching

tools to identify which sites to block. New products are constantly

being developed, however, that could improve the effectiveness of the

blocking software. For example, at least one product has been

designed that is capable of analyzing the content being retrieved by

the computer. By analyzing the content, rather than a predefined

list of sites, the product is capable of screening inappropriate

material from chat rooms, e-mail, attached documents, search

engines, and web browsers. Such products will help parents and

educators reduce a minor’s exposure to sexually explicit material. 

H.R. REP. NO. 105-775, at 19. 

25. We see no need for sustained discussion of the Government’s third

argument. The Government’s assertion that it is more effective to screen

39
The Government makes much of the notion that the

voluntary use of blocking and filtering software places an

onus on parents. Id. (noting “the concern that the expense

of purchasing and updating such software programs might

‘discourage adults or schools from using them.’ ”) (quoting

H.R. REP. NO. 105-775, at 19-20). 

But the Supreme Court has effectively answered this

contention. The Court stated in Playboy, “A court should

not assume a plausible, less restrictive alternative would be

ineffective; and a court should not presume parents, given

full information, will fail to act.” Playboy, 529 U.S. at 805.

The Playboy Court held unconstitutional a federal statutory

provision that required cable operators who provide

channels primarily dedicated to sexually-oriented

programming to scramble or block those channels

completely, or to “time channel” their transmission, i.e.,

limit their availability to hours between 10 p.m. and 6 a.m.,

when, in Congress’s view, children are unlikely to be

viewing television. By this provision Congress sought to

prevent children’s exposure to content contained on such

channels as a result of “signal bleed.”

26

The Court determined that this provision constituted a

“significant restriction of [protected] communication

between speakers and willing adult listeners.” Id. at 812.

The Court held that this provision failed strict scrutiny

because Congress had available to it an effective, less

restrictive means of achieving its ends. In particular,

material before it is posted on the Internet, is no answer at all. First, we

cannot say that the blocking and filtering technology is sufficiently less

effective than COPA such that the technology could not be considered as

an alternative for purposes of the least restrictive means analysis.

Second, to the extent that the Government relies on pre-screening as the

rationale for claiming that COPA is more effective, the argument proves

too much. It is of course true that Web publishers’ self-censorship will

reduce the potential for communication of material harmful to minors,

but the cost results in an intolerable chilling effect. See Part II.A.2(c),

supra. 

26. “Signal bleed” refers to a phenomenon whereby scrambled

programming becomes visible or audible from time to time. Playboy, 529

U.S. at 807. 

40
Congress had provided for an “opt-out” provision whereby

a cable subscriber could request the cable company to

scramble fully or block completely the receipt of sexually

explicit channels. The Court explained that the voluntary

nature of the “opt-out” provision rendered it less restrictive:

“It is no response that voluntary blocking requires a

consumer to take action, or may be inconvenient, or may

not go perfectly every time.” Id. at 824. Instead, the Court

explained that reliance upon “informed and empowered

parents,” id. at 825, was the preferable alternative:

The regulatory alternative of a publicized [“opt-out”

provision], which has . . . the choice of an effective

blocking system, would provide parents the information

needed to engage in active supervision. The

government has not shown that this alternative, a

regime of added communication and support, would be

insufficient to secure its objective, or that any

overriding harm justifies its intervention. 

Id. at 825-26. 

In Fabulous Associates Inc. v. Pennsylvania Public Utility

Commission, 896 F.2d 780 (3d Cir. 1990), we had held

unconstitutional a Pennsylvania law that required adults to

obtain nine-digit access codes in order to listen to dial-aporn messages on their telephones. We held that the

statute was not the least restrictive means of achieving the

state’s interest in protecting minors from such messages

because it required a loss of anonymity on the part of

adults. Although we recognized that pre-blocking would not

protect minors in homes where adult residents had

unblocked the lines, we held that the “responsibility for

making such choices [between individually accessing such

speech and protecting minor dependents from that speech]

is where our society has traditionally placed it — on the

shoulders of the parent.” Id. at 788 (citing Bolger v. Youngs

Drug Prods. Corp., 463 U.S. 60, 73-74 (1983)). 

As with the “opt-out” alternative available in Playboy,

which would allow parents to block sexually-oriented cable

channels effectively, and as with the pre-blocking

alternative described in Fabulous Associates, here filtering

software is a less restrictive alternative that can allow

41
parents some measure of control over their children’s

access to speech that parents consider inappropriate.27

The Government also argues that the blocking and

filtering software is not as effective as COPA in that it is

both over- and underinclusive. To be sure, blocking and

filtering software may sometimes block too little and

sometimes block too much Internet speech. As the District

Court found, blocking and filtering technology is not perfect

in that “some Web sites that may be deemed inappropriate

for minors may not be blocked while some Web sites that

are not inappropriate for minors may be blocked.” Reno II,

31 F. Supp. 2d at 492 (Finding of Fact ¶ 66). The District

Court found, however, that no evidence had been presented

“as to the percentage of time that blocking and filtering

technology is over- or underinclusive.” Id. Moreover, the

District Court, as noted above, determined that blocking

and filtering software could be at least as effective as COPA,

because COPA does not reach “foreign Web sites, noncommercial sites, and . . . [materials available online] via

protocols other than http.” Reno II, 31 F. Supp. 2d at 496.28

A three-judge court has recently held that a federal law

requiring the use of filtering and blocking software on

computers at libraries that received federal funding violates

the First Amendment. See American Library Ass’n v. United

States, 201 F. Supp. 2d 401, 406 (E.D. Pa.) (three-judge

court), prob. juris. noted, 123 S. Ct. 551 (2002). This

decision does not compel a different result here. In that

27. We recognize that parents may face financial costs in purchasing

such software. See Reno II, 31 F. Supp. 2d at 492 (Finding of Fact ¶ 65)

(“Such technology may be downloaded and installed on a user’s home

computer at a price of approximately $40.00.”). 

28. The District Court’s findings of fact on which the above conclusions

are based are not clearly erroneous. As we recited earlier, the

Government did not, and does not, contend that the findings are clearly

erroneous. See Reno III, 270 F.3d at 170. It follows that both COPA and

blocking and filtering technology are over- and underinclusive in differing

ways, and we agree with the District Court’s conclusion that, as a result,

such technology may be at least as effective as COPA. 

For further discussion of COPA’s overinclusiveness, see our discussion

of overbreadth, infra. 

42
case, the American Library court noted that blocking and

filtering technology overblocks and underblocks Internet

content.29 That decision, however, is distinguishable

because, whereas the Act at issue in American Library

involved Government-mandated use of blocking and

filtering software, here we only consider the voluntary use

of such software by parents who have chosen to use this

means to protect their children. We also note that, in

American Library, the Government sought to defend the

legislation at issue by reference to the statute’s “disabling

provision,” which required adults to identify themselves to

librarians in order to disable the filtering software on

library computers, and thus gain unfettered access to the

wide range of speech on the Internet. The court held that

this “disabling provision” created a chilling effect on adult

library patrons’ access to protected speech,30 just as we

29. As the American Library court explained: 

Although [blocking and filtering software] programs are somewhat

effective in blocking large quantities of pornography, they are blunt

instruments that not only “underblock,” i.e., fail to block access to

substantial amounts of content that the library boards wish to

exclude, but also, central to this litigation, “overblock,” i.e., block

access to large quantities of material that library boards do not wish

to exclude and that is constitutionally protected. 

American Library, 201 F. Supp. 2d at 406. 

In addition, we recognize that a report approved by the governing

board of the National Research Council, by a committee chaired by the

Honorable Dick Thornburgh, four years after COPA was enacted (2002),

similarly concluded that: 

Filters are capable of blocking inappropriate sexually explicit

material at a high level of effectiveness — if a high rate of

overblocking is also acceptable. Thus, filters are a reasonable choice

for risk-averse parents or custodians (e.g., teachers) who place a

very high priority on preventing exposure to such material and who

are willing to accept the consequences of such overblocking. 

COMMITTEE TO STUDY TOOLS AND STRATEGIES FOR PROTECTING KIDS FROM

PORNOGRAPHY, NATIONAL RESEARCH COUNCIL, YOUTH, PORNOGRAPHY AND THE

INTERNET § 12.1.8 (Dick Thornburgh & Herbert S. Lin eds., 2002),

available at http://www.nap.edu/html/youth_internet/ (last visited Feb.

6, 2003). 

30. See American Library, 201 F. Supp. 2d at 486 (“By requiring library

patrons affirmatively to request permission to access certain speech

43
have determined that COPA’s affirmative defenses, by

requiring the use of a credit card or adult identification

number, similarly place an impermissible burden on adult

users. 

We agree with the District Court that the various

blocking and filtering techniques which that Court

discussed may be substantially less restrictive than COPA

in achieving COPA’s objective of preventing a minor’s access

to harmful material. We are influenced further in this

conclusion by our reading of the Report of the House

Committee on Commerce, which had advocated the

enactment of COPA. See H.R. REP. NO. 105-775 (1998). That

Report described a number of techniques and/or

alternatives to be used in conjunction with blocking and

filtering software, although the techniques were not adopted

at that time. In each instance, these techniques would

appear to constitute a less restrictive alternative than

COPA’s prescriptions. Moreover, we are at least four years

beyond the technology then considered by the Committee,

and as we had initially observed, “in light of rapidly

developing technological advances, what may now be

impossible to regulate constitutionally may, in the not-toodistant future, become feasible.” Reno III, 217 F.3d at 166.

Because the techniques and/or alternatives considered

by the Committee (i.e., “tagging,” “domain name zoning,”

etc.), see H.R. REP. NO. 105-775, at 16-20, were not

addressed either by the parties or the District Court, we do

not rely upon them here. We do no more than draw

attention to the fact that other possibly less restrictive

alternatives existed when COPA was enacted and more

undoubtedly will be available in the future — many of

which might well be a less restrictive alternative to COPA.31

singled out on the basis of its content, [the federal law at issue] will deter

patrons from requesting that a library disable filters to allow the patron

to access speech that is constitutionally protected, yet sensitive in

nature.”). 

31. Indeed, as the National Research Council’s report noted: 

[T]he problem of protecting children from inappropriate material and

experiences on the Internet is complex. . . . 

44
The existence of less restrictive alternatives renders

COPA unconstitutional under strict scrutiny. As the

Supreme Court has said:

“Precision of regulation must be the touchstone in an

area so closely touching our most precious freedoms.”

If the State has open to it a less drastic way of

satisfying its legitimate interests, it may not choose a

legislative scheme that broadly stifles the exercise of

fundamental personal liberties . . . and the benefit

gained must outweigh the loss of constitutionally

protected rights. 

Elrod v. Burns, 427 U.S. 347, 363 (1976) (quoting Kusper v.

Pontickes, 414 U.S. 51, 59 (1973)). 

* * *

In sum, the District Court did not abuse its discretion in

granting the plaintiffs a preliminary injunction on the

grounds that COPA, in failing to satisfy strict scrutiny, had

no probability of success on the merits. COPA is clearly a

content-based restriction on speech. Although it does

purport to serve a compelling governmental interest, it is

not narrowly tailored, and thus fails strict scrutiny. COPA

also fails strict scrutiny because it does not use the least

restrictive means to achieve its ends. The breadth of the

“harmful to minors” and “commercial purposes” text of

COPA, especially in light of applying community standards

to a global medium and the burdens on speech created by

the statute’s affirmative defenses, as well as the fact that

Congress could have, but failed to employ the least

The effectiveness of technology — based on tools and social and

educational strategies in practice, should be examined and

characterized. Chapter 12 [of this Report] discussed one aspect of

evaluating the performance of filters, based on a “head-to-head”

comparison of how filters performed in blocking inappropriate

materials. But protection of children is a holistic enterprise that

must account for the totality of their Internet experience — which

suggests the need for a examination of all of the tools in all of the

venues in which children use the Internet. 

YOUTH, PORNOGRAPHY AND THE INTERNET, supra note 29, at § 14.6. 

45
restrictive means to accomplish its legitimate goal,

persuade us that the District Court did not abuse its

discretion in preliminarily enjoining the enforcement of

COPA.

B. Overbreadth

Though the Supreme Court held in Ashcroft that COPA’s

reliance on community standards did not alone render the

statute overbroad, the Court specifically declined to

“express any view as to whether COPA suffers from

substantial overbreadth for other reasons [or] whether the

statute is unconstitutionally vague,” instead explaining that

“prudence dictates allowing the Court of Appeals to first

examine these difficult issues.” Ashcroft, 122 S. Ct. at

1713. In this Part, therefore, we discuss whether COPA is

substantially overbroad, and hold that it is.32

In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the

Supreme Court ruled that a statute that burdens otherwise

protected speech is facially invalid if that burden is not only

real, but “substantial as well, judged in relation to the

statute’s plainly legitimate sweep.” Id. at 615. As the Court

has recently stated, “The overbreadth doctrine prohibits the

Government from banning unprotected speech if a

substantial amount of protected speech is prohibited or

chilled in the process.” Free Speech Coalition, 122 S. Ct. at

1404.33

32. The Supreme Court has explained that it has “traditionally viewed

vagueness and overbreadth as logically related and similar doctrines.”

Kolender v. Lawson, 461 U.S. 352, 358 n.8 (citing Keyishian v. Board of

Regents, 385 U.S. 589, 609 (1967); NAACP v. Button, 371 U.S. 415, 433

(1963)). We consider an aspect of the statute that we consider vague in

note 37, infra. 

33. In assessing facial challenges of overbreadth, as we do here, the

courts have “altered [their] traditional rules of standing to permit — in

the First Amendment area — ‘attacks on overly broad statutes with no

requirement that the person making the attack demonstrate that his

own conduct could not be regulated by a statute drawn with the

requisite narrow specificity.’ ” Broadrick, 413 U.S. at 612 (quoting

Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)). This exception to

traditional rules of standing “is deemed necessary because persons

46
Our analysis of whether COPA is overbroad is akin to the

portion of the strict scrutiny analysis we have conducted in

which we concluded that COPA is not narrowly tailored.

Overbreadth analysis — like the question whether a statute

is narrowly tailored to serve a compelling governmental

interest — examines whether a statute encroaches upon

speech in a constitutionally overinclusive manner.

We conclude that the statute is substantially overbroad

in that it places significant burdens on Web publishers’

communication of speech that is constitutionally protected

as to adults and adults’ ability to access such speech. In so

doing, COPA encroaches upon a significant amount of

protected speech beyond that which the Government may

target constitutionally in preventing children’s exposure to

material that is obscene for minors. See Ginsberg, 390 U.S.

at 639-43; see also, e.g., Sable, 492 U.S. at 126; Erznoznik

v. City of Jacksonville, 422 U.S. 205, 212-14 (1975).

1. “Material Harmful to Minors”

First, COPA’s definition of “material harmful to minors”

impermissibly places at risk a wide spectrum of speech that

is constitutionally protected. As we have discussed in our

strict scrutiny analysis, two of the three prongs of the

“harmful to minors” test — the “serious value” and

“prurient interest” prongs — contain requirements that

material be “taken as a whole.” See 47 U.S.C. § 231(e)(6)(C).

We have earlier explained that the First Amendment

requires the consideration of context. COPA’s text, however,

as we have interpreted it, see Part II.A.2(a), supra, calls for

evaluation of “any material” on the Web in isolation.

Such evaluation in isolation results in significant

overinclusiveness. Thus, an isolated item located

whose expression is constitutionally protected may well refrain from

exercising their right for fear of criminal sanctions provided by a statute

susceptible of application to protected expression.” Los Angeles Police

Dept. v. United Reporting Pub. Corp., 528 U.S. 32, 38 (1999) (quoting

Gooding v. Wilson, 405 U.S. 518, 520-521 (1972)). The District Court

held that the plaintiffs had standing. See Reno II, 31 F. Supp. 2d at 479.

We agree. See Reno III, 217 F.3d at 171. 

47
somewhere on a Web site that meets the “harmful to

minors” definition can subject the publisher of the site to

liability under COPA, even though the entire Web page (or

Web site) that provides the context for the item would be

constitutionally protected for adults (and indeed, may be

protected as to minors). 

An examination of the claims of certain amici curiae

that COPA threatens their speech illustrates this problem.

For example, amicus California Museum of

Photography/University of California at Riverside,

maintains a Web site that, among other things, displays

artwork from the museum’s collection. The Web site

contains a page that introduces the “photographers” section

of the Web site. See California Museum of

Photography/University of California at Riverside,

UCR/CMP Photographers, at http://www.cmp.ucr.edu/

photos/photographers.html (last visited Feb. 6, 2003).34 This

Web page contains several photographs, each which serves

as a link to that museum’s on-line exhibit on a particular

photographer. One of these photographs on the

introductory page, by Lucien Clergue, links to the

museum’s exhibit of his work. This photograph is of a

naked woman whose “post-pubescent female breast,” 47

U.S.C. § 231(e)(6)(B), is exposed. 

Viewing this photograph “as a whole,” but without

reference to the surrounding context, as per COPA’s

definition of “material,” the photograph arguably meets the

definition of “harmful to minors.” Yet, this same

photograph, when treated in context as a component of the

entire Web page, cannot be said to be “harmful to minors.”

In the context of the Web page, which displays several art

exhibits, none of which are even arguably “harmful to

minors,” the Clergue photograph and its surroundings

would have “serious [artistic] value.” Of course, it would

also be protected speech as to adults.35

34. The Web site page can be reached by accessing the museum’s main

Web page at http://www.cmp.ucr.edu and then by clicking on a link

marked “photographers.” 

35. Another such example is noted in the American Society of

Journalists’ amicus brief. See Br. of Amici Curiae American Society of

48
As another example, amicus Safer Sex Institute publishes

a Web site that contains sexual health and educational

materials. On one page of this Web site is a textual

description of how to use a condom with accompanying

graphic drawings. See Safer Sex Institute, safersex | a

journal of safer sex, http://safersex.org/condoms/

how.to.use/ (last visited Feb. 6, 2003). The page lists six

steps for properly using a condom. Next to this text are four

drawings that detail how to place a condom on the penis

and how to remove it after sex. Three of these drawings

each “exhibit[ ] . . . the genitals.” 47 U.S.C. § 231(e)(6)(B).

An evaluation of any of these three drawings alone, all of

which depict an erect penis “as a whole,” might lead to the

conclusion that they fit the “harmful to minors” standard.

Yet, these same drawings, viewed in the larger context of

the Web page, which provides instruction on the proper use

of a condom, is protected speech as to adults.36 We also

note that the same Web page provides links to other

information within the same Web site of potential

importance to adults (and possibly certain minors)

regarding safe sex.

As these examples illustrate — and they are but a few of

the very many produced by the plaintiffs and the amici —

the burden that COPA would impose on harmless material

Journalists and Authors et al. at 23 n.19. The American Society points

to the work of photographer Paul Outerbridge as displayed on the J.

Paul Getty Museum Web site. The Web site includes a Web page

featuring a discussion of Outerbridge and containing three small

photographs, one of which is entitled “Woman with Meat Packer’s

Gloves.” See J. Paul Getty Museum, Paul Outerbridge (Getty Museum),

http://www.getty.edu/art/collections/bio/a1971-1.html (last visited Feb.

6, 2003). The museum describes this photograph as a “disturbing image

of a [naked] woman piercing her own breast and abdomen with the

sharp tips of meat packer’s gloves.”). This photograph in isolation

arguably meets COPA’s “harmful to minors” definition. When viewed in

the context of the Web page discussing the artist and displaying his

other art work, however, this image, as a component of the Web page in

its entirety, does not meet the “harmful to minors” standard. 

36. Indeed, though we do not reach this issue, we note that this speech

may not even be obscene as to minors, at least as to older minors,

because it arguably has “serious value” for them. 

49
accompanying such single images causes COPA to be

substantially overinclusive. 

2. “Minor”

As we have earlier explained, the term “minor” appears in

all three prongs of the statute’s modified-for-minors Miller

test. COPA’s definition of a “minor” as any person under the

age of seventeen serves to place at risk too wide a range of

speech that is protected for adults. The type of material

that might be considered harmful to a younger minor is

vastly different — and encompasses a much greater

universe of speech — than material that is harmful to a

minor just shy of seventeen years old. 

Thus, for example, sex education materials may have

“serious value” for, and not be “patently offensive” as to,

sixteen-year-olds. The same material, however, might well

be considered “patently offensive” as to, and without

“serious value” for, children aged, say, ten to thirteen, and

thus meet COPA’s standard for material harmful to minors.

Because COPA’s definition of “minor” therefore broadens

the reach of “material that is harmful to minors” under the

statute to encompass a vast array of speech that is clearly

protected for adults — and indeed, may not be obscene as

to older minors — the definition renders COPA significantly

overinclusive.37

37. We also consider the use of the term “minor,” as incorporated in

COPA’s definition of “material that is harmful to minors,” to be

impermissibly vague. A statute is void for vagueness if it “forbids . . . the

doing of an act in terms so vague that [persons] of common intelligence

must necessarily guess at its meaning and differ as to its application.”

Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). “[S]tandards

of permissible statutory vagueness are strict in the area of free

expression. . . . The objectionable quality of vagueness and overbreadth

does not depend upon absence of fair notice to a criminally accused or

upon unchanneled delegation of legislative powers, but upon the danger

of tolerating, in the area of First Amendment freedoms, the existence of

a penal statute susceptible of sweeping and improper application.”

Button, 371 U.S. at 432-33. See also Reno I, 521 U.S. at 871-72 (because

the CDA was “a content-based regulation of speech,” its “vagueness . . .

raise[d] special First Amendment concerns because of its obvious chilling

effect on free speech”). 

50
3. “Commercial Purposes”

COPA’s purported limitation of liability to persons making

communications “for commercial purposes” does not

narrow the sweep of COPA sufficiently. Instead, the

definition subjects too wide a range of Web publishers to

potential liability. As we have explained, under the plain

language of COPA, a Web publisher will be subjected to

liability due to the fact that even a small part of his or her

Web site has material “harmful to minors.” Furthermore,

because the statute does not require that a Web publisher

seek profit as a sole or primary objective, COPA can reach

otherwise non-commercial Web sites that obtain revenue

through advertising. We have explored this subject in

greater detail in the strict scrutiny section of this opinion.

The conclusion we reach there is every bit as relevant here.

4. Affirmative Defenses

The affirmative defenses do not save the statute from

sweeping too broadly. First, the affirmative defenses, if

employed by Web publishers, will result in a chilling effect

upon adults who seek to view, and have a right to access,

constitutionally protected speech. Compliance with COPA’s

affirmative defenses requires that Web publishers place

obstacles in the way of adults seeking to obtain material

that may be considered harmful to minors under the

COPA’s definition of “minor” includes all children under the age of

seventeen, as we have noted. Because the statute’s definition of minor is

all-inclusive, and provides no age “floor,” a Web publisher will be forced

to guess at the bottom end of the range of ages to which the statute

applies. The fearful Web publisher therefore will be forced to assume,

and conform his conduct to, the youngest minor to whom the statute

conceivably could apply. We cannot say whether such a minor would be

five years of age, three years, or even two months. Because we do not

think a Web publisher will be able to make such a determination either,

we do not think that they have fair notice of what conduct would subject

them to criminal sanctions under COPA. As a result of this vagueness,

Web publishers will be deterred from engaging in a wide range of

constitutionally protected speech. The chilling effect caused by this

vagueness offends the Constitution. 

51
statute. As the District Court found, these barriers, which

would require adults to identify themselves as a

precondition to accessing disfavored speech, are likely to

deter many adults from accessing that speech. 

Second, the affirmative defenses impose a burden on Web

publishers, and as such, do not alleviate the chilling effect

that COPA has on their speech. Web publishers will be

forced to take into account the chilling effect that COPA’s

affirmative defenses have on adult Web users.

Consequently, COPA will cause Web publishers to recoil

from engaging in such expression at all, rather than

availing themselves of the affirmative defenses. Additionally,

the financial costs of implementing the barriers necessary

for compliance with COPA may further deter some Web

publishers from posting protected speech on their Web

sites. 

Moreover, because the affirmative defenses are not

included as elements of the statute, Web publishers are

saddled with the substantial burden of proving that their

“conduct falls within the affirmative defense.” Free Speech

Coalition, 122 S. Ct. at 1404. 

Thus, the affirmative defenses do not cure nor diminish

the broad sweep of COPA sufficiently. 

5. “Community Standards”

As the Supreme Court has now explained, community

standards by itself did not suffice to render COPA

substantially overbroad. Justice Kennedy’s concurring

opinion, however, explained that community standards, in

conjunction with other provisions of the statute, might

render the statute substantially overbroad. See Ashcroft,

122 S. Ct. at 1720 (Kennedy, J., concurring) (“We cannot

know whether variation in community standards renders

the Act substantially overbroad without first assessing the

extent of the speech covered and the variations in

community standards with respect to that speech.”).

As we have just discussed earlier, the expansive

definitions of “material harmful to minors” and “for

commercial purposes,” as well as the burdensome

52
affirmative defenses, likely render the statute substantially

overbroad. COPA’s application of “community standards”

exacerbates these constitutional problems in that it further

widens the spectrum of protected speech that COPA affects.

As we said in our original decision, “COPA essentially

requires that every Web publisher subject to the statute

abide by the most restrictive and conservative state’s

community standards in order to avoid criminal liability.”

Reno III, 217 F.3d at 166; see also Ashcroft, 122 S. Ct. at

1719 (Kennedy, J., concurring) (“if an eavesdropper in a

more traditional, rural community chooses to listen in,

there is nothing the publisher can do. As a practical matter,

COPA makes the eavesdropper the arbiter of propriety on

the Web.”). 

The “community standards” requirement, when viewed in

conjunction with the other provisions of the statute — the

“material harmful to minors” provision and the “commercial

purposes” provisions, as well as the affirmative defenses —

adds to the already wide range of speech swept in by COPA.

Because the community standards inquiry further broadens

the scope of speech covered by the statute, the limitations

that COPA purports to place on its own reach are that

much more ineffective. 

6. Unavailability of Narrowing Construction

Before concluding that a statute is overbroad, we are

required to assess whether it is subject to “a narrowing

construction that would make it constitutional.” Virginia v.

American Booksellers’ Ass’n, 484 U.S. 383, 397 (1988). We

may impose such a narrowing construction, however, “only

if it is readily susceptible to such a construction,” Reno I,

521 U.S. at 884, because courts “will not rewrite a . . . law

to conform it to constitutional requirements.” American

Booksellers, 484 U.S. at 397. As the Supreme Court once

noted, “It would certainly be dangerous if the legislature

could set a net large enough to catch all possible offenders,

and leave it to the courts to step inside and say who could

be rightfully detained, and who should be set at large. This

would, to some extent, substitute the judicial for the

legislative department of the government.” United States v.

Reese, 92 U.S. 214, 221 (1875). 

53
We originally declined to redraw COPA when we held that

the “contemporary community standards” rendered the

statute overbroad; we certainly decline to perform even

more radical surgery here. In order to satisfy the

constitutional prerequisites consistent with our holding

today, we would be required, inter alia, to redraw the text

of “commercial purposes” and redraw the meaning of

“minors” and what is “harmful to minors,” including the

reach of “contemporary community standards.” We would

also be required to redraw a new set of affirmative defenses.

Any attempt to resuscitate this statute would constitute a

“serious invasion of the legislative domain.” United States v.

National Treasury Employees Union, 513 U.S. 454, 479 n.26

(1995).

* * *

Accordingly, we hold that the plaintiffs will more probably

prove at trial that COPA is substantially overbroad, and

therefore, we will affirm the District Court on this

independent ground as well.

III.

This appeal concerns the issuance of a preliminary

injunction pending the resolution of the merits of the case.

Because the ACLU will likely succeed on the merits in

establishing that COPA is unconstitutional because it fails

strict scrutiny and is overbroad, we will affirm the issuance

of a preliminary injunction.

54
APPENDIX A

CHILD ONLINE PROTECTION ACT

47 U.S.C. § 231

Restriction of access by minors to materials commercially

distributed by means of world wide web that are harmful to

minors

(a) Requirement to restrict access 

(1) Prohibited conduct 

Whoever knowingly and with knowledge of the

character of the material, in interstate or foreign

commerce by means of the World Wide Web, makes

any communication for commercial purposes that is

available to any minor and that includes any material

that is harmful to minors shall be fined not more than

$50,000, imprisoned not more than 6 months, or both.

(2) Intentional violations 

In addition to the penalties under paragraph (1),

whoever intentionally violates such paragraph shall be

subject to a fine of not more than $50,000 for each

violation. For purposes of this paragraph, each day of

violation shall constitute a separate violation. 

(3) Civil penalty 

In addition to the penalties under paragraphs (1) and

(2), whoever violates paragraph (1) shall be subject to

a civil penalty of not more than $50,000 for each

violation. For purposes of this paragraph, each day of

violation shall constitute a separate violation.

(b) Inapplicability of carriers and other service providers

For purposes of subsection (a), a person shall not be

considered to make any communication for commercial

purposes to the extent that such person is— 

(1) a telecommunications carrier engaged in the

provision of a telecommunications service; 

(2) a person engaged in the business of providing an

Internet access service; 

55
(3) a person engaged in the business of providing an

Internet information location tool; or 

(4) similarly engaged in the transmission, storage,

retrieval, hosting, formatting, or translation (or any

combination thereof) of a communication made by

another person, without selection or alteration of the

content of the communication, except that such

person’s deletion of a particular communication or

material made by another person in a manner

consistent with subsection (c) or section 230 shall not

constitute such selection or alteration of the content of

the communication.

(c) Affirmative defense 

(1) Defense 

It is an affirmative defense to prosecution under this

section that the defendant, in good faith, has restricted

access by minors to material that is harmful to minors

— 

(A) by requiring use of a credit card, debit

account, adult access code, or adult personal

identification number; 

(B) by accepting a digital certificate that verifies

age; or 

(C) by any other reasonable measures that are

feasible under available technology. 

(2) Protection for use of defenses 

No cause of action may be brought in any court or

administrative agency against any person on account

of any activity that is not in violation of any law

punishable by criminal or civil penalty, and that the

person has taken in good faith to implement a defense

authorized under this subsection or otherwise to

restrict or prevent the transmission of, or access to, a

communication specified in this section.

(d) Privacy protection requirements 

(1) Disclosure of information limited 

56
A person making a communication described in

subsection (a)— 

(A) shall not disclose any information collected for

the purposes of restricting access to such

communications to individuals 17 years of age or

older without the prior written or electronic consent

of— 

(i) the individual concerned, if the individual is

an adult; or 

(ii) the individual’s parent or guardian, if the

individual is under 17 years of age; and 

(B) shall take such actions as are necessary to

prevent unauthorized access to such information by

a person other than the person making such

communication and the recipient of such

communication. 

(2) Exceptions 

A person making a communication described in

subsection (a) may disclose such information if the

disclosure is— 

(A) necessary to make the communication or

conduct a legitimate business activity related to

making the communication; or 

(B) made pursuant to a court order authorizing

such disclosure.

(e) Definitions

For purposes of this subsection, the following definitions

shall apply: 

(1) By means of the world wide web 

The term “by means of the World Wide Web” means

by placement of material in a computer server-based

file archive so that it is publicly accessible, over the

Internet, using hypertext transfer protocol or any

successor protocol. 

(2) Commercial purposes; engaged in the business 

57
(A) Commercial purposes 

A person shall be considered to make a

communication for commercial purposes only if such

person is engaged in the business of making such

communications. 

(B) Engaged in the business 

The term “engaged in the business” means that the

person who makes a communication, or offers to

make a communication, by means of the World Wide

Web, that includes any material that is harmful to

minors, devotes time, attention, or labor to such

activities, as a regular course of such person’s trade

or business, with the objective of earning a profit as

a result of such activities (although it is not

necessary that the person make a profit or that the

making or offering to make such communications be

the person’s sole or principal business or source of

income). A person may be considered to be engaged

in the business of making, by means of the World

Wide Web, communications for commercial purposes

that include material that is harmful to minors, only

if the person knowingly causes the material that is

harmful to minors to be posted on the World Wide

Web or knowingly solicits such material to be posted

on the World Wide Web. 

(3) Internet 

The term “Internet” means the combination of

computer facilities and electromagnetic transmission

media, and related equipment and software,

comprising the interconnected world-wide network of

computer networks that employ the Transmission

Control Protocol/Internet Protocol or any successor

protocol to transmit information. 

(4) Internet access service 

The term “Internet access service” means a service

that enables users to access content, information,

electronic mail, or other services offered over the

Internet, and may also include access to proprietary

content, information, and other services as part of a

58
package of services offered to consumers. Such term

does not include telecommunications services. 

(5) Internet information location tool 

The term “Internet information location tool” means

a service that refers or links users to an online location

on the World Wide Web. Such term includes

directories, indices, references, pointers, and hypertext

links. 

(6) Material that is harmful to minors 

The term “material that is harmful to minors” means

any communication, picture, image, graphic image file,

article, recording, writing, or other matter of any kind

that is obscene or that— 

(A) the average person, applying contemporary

community standards, would find, taking the

material as a whole and with respect to minors, is

designed to appeal to, or is designed to pander to,

the prurient interest; 

(B) depicts, describes, or represents, in a manner

patently offensive with respect to minors, an actual

or simulated sexual act or sexual contact, an actual

or simulated normal or perverted sexual act, or a

lewd exhibition of the genitals or post-pubescent

female breast; and 

(C) taken as a whole, lacks serious literary,

artistic, political, or scientific value for minors. 

(7) Minor 

The term “minor” means any person under 17 years

of age. 

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

59