## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 2 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

AMERICAN CIVIL LIBERTIES UNION; MARK AMERIKA of Alt-X; ART ON THE NET; FEMINIST.COM; FULL CIRCLE BOOKS; OBGYN.NET; SANTA FE ONLINE; SEXUAL HEALTH INSTITUTE; STOP PRISONER RAPE; JEFF WALSH of Oasis Magazine; AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION; ASSOCIATION OF AMERICAN PUBLISHERS, INC.; ELECTRONIC FRONTIER FOUNDATION; THE FREEDOM TO READ FOUNDATION; INTERNATIONAL PERIODICAL DISTRIBUTORS ASSOCIATION, INC.; NEW MEXICO LIBRARY ASSOCIATION; PEN AMERICAN CENTER; PERIODICAL AND BOOK ASSOCIATION OF AMERICA; PUBLISHERS MARKETING ASSOCIATION; RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC.,

Plaintiffs - Appellees, No. 98-2199

v. GARY JOHNSON, in his official capacity as Governor of the State of New Mexico; PATRICIA A. MADRID, in her official capacity as Attorney General of the State of New Mexico,

Defendants - Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. NO. CIV-98-474-LH)* The Honorable Dale A. Kimball, United States Distri ct Judge for the

District of Utah, sitting by designation. -2- John H. Clough, Assistant Attorney General (Tom Uda ll, Attorney General, Patricia A. Madrid, Attorney General, and Steven L. Bunch, Assistant Attorney General, with him on the briefs), Santa Fe, New Mex ico, for Defendants - Appellants. Ann Beeson, American Civil Liberties Union Foundati on, New York, New York (Christopher A. Hansen, American Civil Liberties Un ion Foundation, New York, New York, Philip B. Davis, American Civil Liberties Union of New Mexico, Albuquerque, New Mexico, and Michael A. Bamberger, Sonnenschein, Nath & Rosenthal, New York, New York, with her on the brie f), for Plaintiffs - Appellees.

Before ANDERSON and BRISCOE , Circuit Judges, and KIMBALL , * District Judge.

ANDERSON , Circuit Judge.

Defendants appeal from the grant of a preliminary i njunction enjoining the enforcement of a New Mexico statute, N.M. Stat. Ann . § 30-37-3.2(A), which criminalizes the dissemination by computer of mater ial that is harmful to minors. The district court concluded that plaintiffs, the A merican Civil Liberties Union (“ACLU”) and various organizations and entities whi ch communicate on the Internet, had demonstrated that they were likely to succeed on the merits of their claim that section 30-37-3.2(A) violated the First Amendment and the Commerce-3-

Clause of the United States Constitution, and had m et the other requirements for issuance of a preliminary injunction. We agree, an d we therefore AFFIRM the district court’s grant of injunctive relief.

BACKGROUND In its 1998 session, the New Mexico Legislature ena cted section 30-37-3.2(A), which provides as follows: 30-37-3.2 Dissemination of material that is harmful to a minor by computer A. Dissemination of material that is harmful to a minor by computer consists of the use of a computer communications system that allows the input, output , examination or transfer of computer data or compute r programs from one computer to another, to knowingly and intentionally initiate or engage in communicati on with a person under eighteen years of age when such communication in whole or in part depicts actual or simulated nudity, sexual intercourse or any other s exual conduct. Whoever commits dissemination of material that is harmful to a minor by computer is guilty of a misdemeanor. The statute provides the following defenses: In a prosecution for dissemination of material thatis harmful to a minor by computer, it is a defense that the defendant has: (1) in good faith taken reasonable, effective and appr opriate actions under the circumstances to restrict or prev ent access by minors to indecent materials on computer, including any method that is feasible with available technology;1 The New Mexico Legislature also passed a statute cr iminalizing child

luring by means of the computer. See N.M. Stat. Ann. § 30-37-3.2(B). Plaintiffs do not challenge that statute. -4- (2) restricted access to indecent materials by requiri ng the use of a verified credit card, debit account, adult access c ode or adult personal identification number; or (3) in good faith established a mechanism such as labe ling, segregation or other means that enables indecent material to be automatically blocked or screened by software or other capability reasonably available to persons who wishto effect such blocking or screening and the defendant has no t otherwise solicited a minor not subject to such screening or blocking capabilities to access the indecent material or to circumvent screening or blocking. N.M. Stat. Ann. § 30-37-3.2(C). The statute became effective July 1, 1998. 1 As the district court found, “[p]laintiffs are vari ous organizations and individuals who maintain or use computer systems to provide access to a range of information through a variety of media[,] [which] i s accessible by residents of the State of New Mexico on the Internet.” ACLU v. Johnson , 4 F. Supp. 2d 1024, 1026 (D.N.M. 1998). Plaintiffs’ speech includes di scussions of women’s health and interests, literary works and fine art, gay andlesbian issues, prison rapes, and censorship and civil liberties issues. As the part ies stipulated: The Internet is a decentralized, global medium of c ommunication that links people, institutions, corporations and govern ments around the world. It is a giant computer network that interco nnects innumerable smaller groups of linked computer networks and indi vidual computers. While estimates are difficult due to it s constant and rapid growth, the Internet is currently believed to conne ct more than 159 countries and over 109 million users.-5-

J. Stipulation on Facts at ¶ 2, Defendants’ App. at232. We do not recite here the specifics of how the Internet functions; where nece ssary, we describe any relevant features of the Internet in our analysis of this ca se. We note that the general contours of the Internet have been described in var ious other judicial opinions.
See Reno v. ACLU , 521 U.S. 844, 849-57 (1997); Cyberspace, Communications, Inc. v. Engler , 55 F. Supp. 2d 737, 740-44 (E.D. Mich. 1999); American Libraries Assoc. v. Pataki , 969 F. Supp. 160, 164-67 (S.D.N.Y. 1997); Shea v. Reno , 930 F. Supp. 916, 925-34 (S.D.N.Y. 1996). Plaintiffs filed this action on April 22, 1998, ove r two months prior to the statute’s effective date, seeking to have enforceme nt of section 30-37-3.2(A) enjoined as facially invalid under the First Amendm ent, the Fourteenth Amendment and the Commerce Clause. Defendants file d motions to dismiss, arguing (1) plaintiffs lacked standing and/or the i ssue was not ripe for decision; (2) the Eleventh Amendment bars this suit; and (3) the court should abstain until the New Mexico Supreme Court has had an opportunityto interpret the language of section 30-37-3.2(A) so as to resolve the consti tutional issues presented. The district court held that plaintiffs had standin g to bring this action and that the matter was ripe for review; that abstentio n would not be appropriate; and that the Eleventh Amendment did not bar this suit s eeking prospective injunctive relief. See Johnson , 4 F. Supp. 2d at 1026. The court then held a hearing on2 Defendants argue that, after granting injunctive re lief following the

hearing, the court asked the ACLU’s attorney to pre pare proposed findings of fact and conclusions of law, which that attorney did. D efendants assert that: [a]part from one dispositional paragraph inserted b y the District Court, several non-substantive modifications, and the insertion of citations supporting the Conclusions of Law, the Di strict Court incorporated all of Plaintiffs’ Proposed Findings o f Fact and Conclusions of Law into its own Findings of Fact an d Conclusions of Law and signed it just four days after receipt [fro m plaintiffs]. Defendants’ Br. at 5-6. Defendants argue that this circumstance mandates that we view the district court’s findings and conclusions with less deference than they would otherwise deserve. We of course review any l egal conclusions de novo. Further, “[t]he Supreme Court has held that althoug h a trial judge may be criticized for his wholesale adoption of the prevai ling party’s findings of fact, nevertheless ‘even when the trial judge adopts prop osed findings verbatim, the findings are those of the court and may be reversedonly if clearly erroneous.’” Dowell v. Board of Educ. , 8 F.3d 1501, 1509 (10th Cir. 1993) (quoting Ander son v. City of Bessemer City , 470 U.S. 564, 572 (1985)). -6- plaintiffs’ motion for a preliminary injunction, wh ere it heard testimony from five witnesses, reviewed affidavits, declarations and th e Joint Stipulation on Facts, and listened to argument from counsel. The court s ubsequently granted plaintiffs’ motion for a preliminary injunction. See Johnson , 4 F. Supp. 2d at 1029. 2 Defendants appeal, arguing the district court: (1) erred in refusing to dismiss this case for lack of standing because sect ion 30-37-3.2(A) has not yet been enforced, nor is there any real and imminent threat of such enforcement; (2) erroneously interpreted section 30-37-3.2(A) inthe course of determining that plaintiffs were likely to succeed on the merits of their challenge to the statute;-7-

(3) erroneously found plaintiffs would suffer irrep arable injury unless the injunction issues; (4) erred in including New Mexic o’s district attorneys in the preliminary injunction’s coverage; and (5) reached various other erroneous legal conclusions. At oral argument of this case, defend ants also urged us to certify the interpretation of section 30-37-3.2(A) to the New M exico Supreme Court before resolving any constitutional issues.

DISCUSSION I. Standing “Standing is a threshold, jurisdictional issue.” Keyes v. School Dist. No. 1 , 119 F.3d 1437, 1445 (10th Cir. 1997). To establishstanding, plaintiffs “must have suffered an ‘injury-in-fact.’” Clajon Prod. Corp. v. Petera , 70 F.3d 1566, 1572 (10th Cir. 1995) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992)). To establish an injury-in-fact, plaintiff s must show “an invasion of a legally protected interest which is (a) concrete an d particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan , 504 U.S. at 560 (citations and quotations omitted). Defendants argue plaintif fs lack standing because this suit was brought before the effective date of secti on 30-37-3.2(A), and because plaintiffs have not “received a real and concrete threat of prosecution from law enforcement authorities,” Defendants’ Br. at 43, no r have they demonstrated that-8-

they refrained from constitutionally protected cond uct or actually violated the law. We disagree. In Virginia v. American Booksellers Assoc. , 484 U.S. 383 (1988), the Supreme Court held that plaintiffs had standing to challenge a statute prohibiting the commercial display of sexual materials harmful to juveniles, even though “plaintiffs’ challenge was . . . made before the statute became effective.” Id. at 392. The Court held that the injury-in-fact requir ement of standing was met “as the law is aimed directly at plaintiffs, who, if th eir interpretation of the statute is correct, will have to take significant and costly c ompliance measures or risk criminal prosecution.” Id. The Court further stated: We are not troubled by the pre-enforcement nature o f this suit. The State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise. We conclude that plaintiffs have alleged an actual and well-fou nded fear that the law will be enforced against them. Further, the al leged danger of this statute is, in large measure, one of self-cens orship; a harm that can be realized even without an actual prosecution. Id. at 393. We likewise agree with this recent observ ation by a district court facing a similar challenge to a similar statute: Under the criteria outlined by the Supreme Court in Lujan , the plaintiffs have standing, because an alleged injuryis “certainly impending,” if the statute takes effect and the mat erial they disseminate is deemed “sexually explicit.” No one should have to go through being arrested for a felony, publically shamed, and pay for a defense only to have a court find that the newly en acted statute is unconstitutional. This can, and should, be determi ned before such injury occurs.3 Defendants attempt to undermine the nature of the “ injury” to plaintiffs by

arguing that plaintiffs have not demonstrated that their Internet communications meet the definition of “material that is harmful to a minor” under section 30-37-3.2(A). The New Mexico statute defines “harm ful to minors” as material which (1) “predominately appeals to the prurient, s hameful or morbid interest of minors,’ and (2) is patently offensive to prevailin g standards in the adult community as a whole with respect to what is suitab le material for minors,’ and (3) is utterly without redeeming social importance for minors.” N.M. Stat. Ann. § 30-37-1(F). Defendants argue that, since plainti ffs assert their Internet communications have social importance and are prote cted for adults, they fail to meet the definition of “harmful to a minor.” Defen dants overlook the basic point that what may be “patently offensive . . . for minors ” or “utterly without redeeming social importance for minors ” may very well have social importance and not be patently offensive for adults. -9- Cyberspace, Communications, Inc. v. Engler , 55 F. Supp. 2d 737, 745-46 (E.D. Mich. 1999) (quoting Lujan , 505 U.S. at 564 n.2). 3 We also conclude, for substantially the same reason s, that the matter is ripe for review. “[I]f a threatened injury is sufficiently ‘imminent’ to establish standing, the constitutional requirements of the ri peness doctrine will necessarily be satisfied.” National Treasury Employees Union v. United States , 101 F.3d 1423, 1428 (D.C. Cir. 1996). Moreover, as we have observed, “customary ripeness analysis . . . is . . . relaxed somewhat . . . where a facial challenge, implicating First Amendment values, is brought.” New Mexicans for Bill Richardson v. Gonzales , 64 F.3d 1495, 1499 (10th Cir. 1995). In that situation, “‘[r]easonable predictability of enforcement or thr eats of enforcement, without-10-

more, have sometimes been enough to ripen a claim.’” Id. (quoting Martin Tractor Co. v. Federal Election Comm’n , 627 F.2d 375, 380 (D.C. Cir. 1980)). We agree with the district court that plaintiffs have established standing and ripeness.

II. Injunctive Relief A party seeking a preliminary injunction must show that four conditions are

met: (1) the movant will suffer irreparable harm unless the injunction issues; (2) there is a substantial likelihood the m ovant ultimately will prevail on the merits; (3) the threatened injury to the movant outweighs any harm the proposed injunction may caus e the opposing party; and (4) the injunction would not be contraryto the public interest. Kiowa Indian Tribe of Oklahoma v. Hoover , 150 F.3d 1163, 1171 (10th Cir. 1998). We review the grant of a preliminary injunc tion for an abuse of discretion. Kansas Health Care Assoc., Inc. v. Kansas Dep’t of Social & Rehabilitation
Servs. , 31 F.3d 1536, 1543 (10th Cir. 1994). We reverse that grant “only if the district court ‘abuses its discretion, commits an e rror of law, or is clearly erroneous in its preliminary factual findings.’” Id. (quoting Autoskill Inc. v. National Educ. Support Sys., Inc. , 994 F.2d 1476, 1487 (10th Cir. 1993)). The district court found that plaintiffs had satisf ied all four conditions for the issuance of a preliminary injunction. We agree

.-11-

A. Likelihood of Success on Merits
1. First Amendment The district court held that section 30-37-3.2(A) v iolates the First and Fourteenth Amendments “because it effectively bans speech that is constitutionally protected for adults;” it does not“directly and materially advance a compelling governmental interest;” it is not “the least restrictive means of serving its stated interest;” it “interferes with the rights of minors to access and view material that to them is protected by the Firs t Amendment;” it is “substantially over-broad;” and it “prevents people from communicating and accessing information anonymously.” Johnson , 4 F. Supp. 2d at 1033. Defendants respond that section 30-37-3.2(A) can an d must be read narrowly, and, so narrowed, it is constitutional under the authority of Ginsberg v. New York , 390 U.S. 629 (1968) (upholding conviction for sel ling obscene magazine to minor). “Sexual expression which is indecent but is not obs cene is protected by the First Amendment.” Sable Communications, Inc. v. FCC , 492 U.S. 115, 126 (1989). As the Court has acknowledged, however, th e government may “regulate the content of constitutionally protected speech inorder to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.” Id. While there is an indisputably “compelling intere st in protecting the physical4 The Court has determined which level of scrutiny to apply to particular

types of speech, depending in part on the particular speech medium involved. Thus, for example, attempts to regulate the print m edia have been subjected to strict scrutiny, while the broadcast media have bee n afforded less First Amendment protection. After examining the nature o f the Internet, and concluding that it is more similar to the telephone as a communication medium than to the broadcast media, the Court in Reno determined that the Internet deserved the highest level of First Amendment prote ction. -12- and psychological well-being of minors,” nonetheles s, the government’s chosen means to achieve that end must be “carefully tailored.” Id. The Court made clear in Reno v. ACLU , 521 U.S. at 870, that content-based regulation of Internet speech is subject to that same strict scrutiny. 4 Plaintiffs rely heavily upon Reno , in which the Supreme Court held that portions of the Communications Decency Act (“CDA”), 47 U.S.C. § 223(a)(1), (d), violated the First Amendment. Because the Court’s analysis in Reno is central to our resolution of this case, we examine that decision in some detail.

a. Reno v. ACLU The Court in Reno held that two provisions of the CDA were facially overbroad. The first imposed liability on anyone w ho: (B) by means of a telecommunications device knowing ly– (i) makes, creates, or solicits, and (ii) initiates the transmission of, any . . . communication which is obscene or indecent, knowing that the recipient of the communication is under 18 year s of age . . . .-13-

47 U.S.C. § 223(a). The second imposed liability o n anyone who knowingly: (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any . . . communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexua l or excretory activities or organs . . . . 47 U.S.C. § 223(d). The CDA contained two defenses virtually identical to two of the defenses provided in section 30-37-3.2(A). One defense addressed those who take “good faith, reasonable, effective, and ap propriate actions” to restrict access by minors to the prohibited communications. § 223(e)(5)(A). The other defense addressed those who restrict access to the prohibited communications “by requiring use of a verified credit card, debit acco unt, adult access code, or adult personal identification number.” § 223(e)(5)(B). Plaintiffs in Reno challenged the CDA as facially overbroad in violat ion of the First Amendment and vague in violation of the F ifth Amendment. The Court held the statute was overbroad and vague in violati on of the First Amendment without separately reaching Fifth Amendment vaguene ss. The Court reached that conclusion by considering both the particular langu age and structure of the CDA, as well as the nature and function of the Internet. It held that “the vague contours of the coverage of the statute” cause it to “unques tionably silence[] some speakers whose messages would be entitled to constitutional protection.” Reno , 521 U.S.5 The Court noted, as examples, the following ambigui ties in the CDA’s

coverage: the term “indecent” is nowhere defined; the phrase “in context, depicts or describes, in terms patently offensive as measur ed by contemporary community standards, sexual or excretory activities or organs ” is ambiguous and, as applied to the Internet, “means that any communication avai lable to a nation-wide audience will be judged by the standards of the com munity most likely to be offended by the message.” Reno , 521 U.S. at 877-78. -14- at 874. 5 This is particularly troublesome because the CDA is a “content-based regulation of speech” which imposes criminal liability. Id. at 871-72. Significantly, in rejecting the government’s argume nt that the CDA does not prohibit protected adult communication, the Cou rt rejected the government’s “incorrect factual premise that prohibiting a trans mission whenever it is known that one of its recipients is a minor would not int erfere with adult-to-adult communication.” Id. at 876. That factual premise is incorrect when th e communication medium is the Internet because “[g]iv en the size of the potential audience for most messages, . . . the sender must b e charged with knowing that one or more minors will likely view it.” Id. Moreover, it would be prohibitively expensive to require Internet users, many of whom are non-commercial entities, to verify the age of those to whom communications are sent. Given its vagueness and breadth, the Court conclude d that the CDA was not narrowly tailored to achieve the goal of protecting minors, in view of the fact that:6 The Court also observed that, even if the CDA only prohibited

communications where the sender knew a recipient wa s under 18, it would still chill otherwise permissible speech among adults. T his is so because it would permit a “‘heckler’s veto’ upon any opponent of ind ecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child—a ‘specific person . . . under 18 years of age,’ woul d be present.” Reno 521 U.S. at 880 (quoting 47 U.S.C. § 223(d)(1)(A)). -15- possible alternatives [exist] such as requiring that indecent material be ‘tagged’ in a way that facilitates parental control of material coming into their homes, making exceptions for mess ages with artistic or educational value, providing some toler ance for parental choice, and regulating some portions of the Interne t—such as commercial web sites—differently than others, such as chat rooms. Id. at 879. The Court also rejected the government’s narrowing interpretation of the CDA, which attempted to limit the CDA’s scope by fo cusing on the “plain meaning” of the Act’s “knowledge” and “specific person” requirements. Id. The government argued that, properly and narrowly construed, the CDA prohibited “the dissemination of indecent messages only to per sons known to be under 18.” Id. at 880. The Court rejected this interpretation, s tating that it “ignores the fact that most Internet fora—including chat rooms, newsg roups, mail exploders, and the Web—are open to all comers. The Government’s a ssertion that the knowledge requirement somehow protects the communications of adults is therefore untenable. Even the strongest reading of the ‘spec ific person’ requirement of § 223(d) cannot save the statute.” Id. 6-16-

Finally, the Court rejected the contention that the CDA’s defenses salvage the Act. The Court first held that the defense req uiring “good faith, reasonable, effective, and appropriate actions,” 47 U.S.C. § 22 3(e)(5), to prevent access by minors is “illusory” because current technology does not permit effective prevention of access. With respect to the defense of requiring use of a verified credit card or adult identification number, the Cou rt observed that commercial providers of sexually explicit material already emp loy such techniques, but there is no proof that they actually work, and it is not economically feasible for noncommercial speakers to employ such techniques. Thu s, the Government has “failed to prove that the proffered defense[s] woul d significantly reduce the heavy burden on adult speech produced by the prohibition on offensive displays.” Id. at 882. The Court accordingly concluded that the CDA “threatens to torch a large segment of the Internet community.” Id.

b. N.M. Stat. Ann. § 30-37-3.2(A) Defendants in this case attempt to distinguish boththe language of the CDA itself, and the Court’s reasoning in finding itunconstitutional, in an effort to convince us that we should not reach the same resul t with respect to section 30-37-3.2(A). We conclude, however, that the essence of the Supreme7 In Ginsberg , the Supreme Court upheld a statute which prohibit ed the sale

to minors of materials that were “harmful to minors ” even though they were not obscene or otherwise prohibited for adults. “Harmf ul to minors” had a specific three-part definition. Ginsberg , 390 U.S. at 646. Section 30-37-3.2(A) contains the same definition of “harmful to minors.” Defendants argue that “[t]his case is an electronic Ginsbergcase, or cyberGinsberg : nothing more, nothing less.” Defendants’ Br. at7. We disagree. As the Supreme Court noted in Reno , there are significant differences between Ginsberg , involving face-to-face sales of magazines, and a case such as this one and Reno , involving communications on the Internet: (1) th e prohibition against sales to minors in Ginsbergdid not prevent parents from purchasing the prohibited magazines for their children, whereas un der the CDA, or section 30-37-3.2(A), “neither the parents’ consent—nor eve n their participation—in the communication would avoid the application of the st atute,” Reno , 521 U.S. at 865; (2) the statute in Ginsberg applied only to commercial transactions, whereas the CDA and section 30-37-3.2(A) apply to commercia l and non-commercial transactions, the latter of which comprise a measur able proportion of Internet communications; and (3) the statute in Ginsberg defined minors as those under 17, whereas the CDA and section 30-37-3.2(A) includ e an additional year because they define minors as those under 18. See Reno , 521 U.S. at 865-66. Additionally, as the district court noted recently in Cyberspace, Communications : (continued...) -17- Court’s rationale, and the similarities between the two statutes, do compel the same result. As did the government in Reno , defendants here urge us to narrowly read section 30-37-3.2(A) to apply only to the following situations: (1) communications using a computer communications system in which (2) the sender deliberately (“knowingly and intentionally”) (3) sends a message which is “harmful to minors” as defined in section 30-37-3.2(A), which is, in turn, the same as that approved in Ginsberg , 7(4) to a specific individual recipient who the7 (...continued)

[I]n [Ginsberg ], the “materials” referenced were magazines . . .

. Magazines . . . can be brown bagged or hidden in th e backroom of purveyors. With the Internet, you would have to “c lose the bookstore” because the disseminator and the recipie nt are not face to face. A magazine can be regulated or censored by the county in which it is located. A person’s age can be verifie d because the person is physically there, and the disseminator can logically be held responsible for conveying “sexually explicit matter ” to a minor. The Internet does not distinguish between minors and ad ults in their audience. To comply with the Act, a communicant mu st speak only in language suitable for children. Cyberspace, Communications, Inc. , 55 F. Supp. 2d at 747; see also Reno , 521 U.S. at 889 (O’Connor, J., concurring in the judgme nt in part and dissenting in part) (noting that the “twin characteristics of geo graphy and identity” differentiate the world of Ginsbergfrom that of the Internet). -18- sender knows to be a minor (“solely and exclusivelyan individual minor recipient”). They thus argue that section 30-37-3. 2(A) “does not apply to group communications which include both adults and minors in the group, or where a fact situation presents a mere probability that min ors may be part of the receiving group.” Aplts.’ Br. at 19. We may narrowly construe a statute in certain circu mstances: It has long been a tenet of First Amendment law that in determining a facial challenge to a statute, if it be readily sus ceptible to a narrowing construction that would make it constitut ional, it will be upheld. The key to application of this principle i s that the statute must be readily susceptible to the limitation; we w ill not rewrite a state law to conform it to constitutional requireme nts.-19-

Virginia v. American Booksellers’ Ass’n , 484 U.S. at 397. As indicated, the statute must be readily susceptible to the narrowing construction. See Reno , 521 U.S. at 884. We agree with plaintiffs that defendants’ proposed narrowing construction really amounts to a wholesale rewritin g of the statute. That we cannot do. Defendants argue section 30-37-3.2(A) only applies where the recipient is “solely and exclusively an individual minor recipie nt.” Aplts.’ Br. at 21. As plaintiffs point out, the statute nowhere uses thos e limiting words, nor is it readily susceptible to such a limiting construction. The s tatute criminalizes “knowingly and intentionally initiat[ing] or engag[ing] in com munication with a [minor].” § 30-37-3.2(A). It does not limit such communicati on to one-on-one situations where the only recipient is a single minor. Indeed , as plaintiffs note, defendants’ interpretation would lead to the absurd result thatno violation of the statute would occur if someone sent a message to two minors , or a chat room full of minors, or a minor and an adult. Defendants also argue that the intent clause (“know ingly and intentionally initiate or engage in communication with a person u nder eighteen”) appropriately narrows the statute. But the statutory definition of “knowingly” only requires “having general knowledge of, or reason to know, ora belief or ground for belief which warrants further inspection or inquiry of . . . the age of the minor.” N.M.8 Defendants attempt to distinguish Reno on this point, by arguing that the

CDA was broader than section 30-37-3.2(A). They ci te the CDA’s prohibition on the use of a computer to “display in a manner avail able to a person under 18 years of age” certain material. 47 U.S.C. § 223(d)(1)(B) . As plaintiffs note, this argument ignores the fact that the Supreme Court he ld other parts of the CDA unconstitutionally overbroad and vague, including the knowing initiation of the transmission of certain material to someone “knowin g the recipient is under 18 years of age” and the knowing sending of material t o “a specific person or persons under 18 years of age.” 47 U.S.C. § 223(a) (1)(B), (d)(1)(A). Those provisions are virtually identical to the narrowed construction of section 30-37-3.2(A) that defendants urge us to adopt. The Supreme Court’s rejection of the argument that the “knowledge” and the “specific person” requirements salvaged the overbreadth of the CDA compels the rej ection of defendants’ similar argument in this case. -20- Stat. Ann. § 30-37-1(G). As the Supreme Court acknowledged in Reno , “[g]iven the size of the potential audience for most message s [on the Internet], in the absence of a viable age verification process, the s ender must be charged with knowing that one or more minors will likely view it.” Reno , 521 U.S. at 876. Thus, virtually all communication on the Internet would meet the statutory definition of “knowingly” and potentially be subjec t to liability under section 30-37-3.2(A). Indeed, the Supreme Court unequivoca lly rejected this very argument in Reno : “[t]he Government’s assertion that the knowledge requirement somehow protects the communications of adults is . . . untenable. Even the strongest reading of the ‘specific person’ requirem ent of § 223(d) cannot save the

statute .” Id. at 880 (emphasis added). 8-21-

Finally, as defendants virtually concede in their r eply brief, the defenses contained in the New Mexico statute are inconsistent with defendants’ interpretation of the statute. If section 30-37-3. 2(A) only applies to a person who intentionally communicates with a particular indivi dual whom he or she knows to be a minor, it would be nonsensical to permit such a person to avoid liability by arguing the good faith defense, or asking for a cre dit card number or other age verification or labeling his or her speech. The fa ct that the defenses are directed at group communications that have unique dynamics o n the Internet certainly suggests that the basic prohibition of the statute also includes, and was intended to include, group communications. This further und ermines the viability of defendants’ interpretation of section 30-37-3.2(A). In sum, the statute as written, like the CDA, uncon stitutionally burdens otherwise protected adult communication on the Inte rnet. Further, it is not “readily susceptible” to the extremely narrow interpretation defendants advance.

c. Statutory defenses Defendants next suggest that the defenses in the Ne w Mexico statute provide “the sort of ‘narrowing tailoring’ that wil l save an otherwise patently invalid unconstitutional provision.” Reno , 521 U.S. at 882. We disagree. The Supreme Court in Reno held that a “good faith” defense virtually identic al to the-22-

defense provided in § 30-37-3.2(C)(1) was “illusory.” Id. at 881. It also held that a defense requiring verification by means of a cred it card or adult access or identification code was equally ineffective because the government “failed to prove that the proffered defense would significantl y reduce the heavy burden on adult speech produced by the prohibition on offensive displays.” Reno , 521 U.S. at 882. Finally, defendants in this case have not demonstrated, nor do they seriously argue, that the third defense, exempting those who “in good faith establish a mechanism such as labeling, segregationor other means that enables indecent material to be automatically blocked or sc reened” will be any more effective at actually preventing minors from access ing material on the Internet. We therefore agree with the district court that, as in Reno , the defenses to section 30-37-3.2(A) do not salvage an otherwise un constitutionally broad statute. In so holding, we note that a district court has re cently reached the same conclusion regarding a similar statute. See Cyberspace, Communications, Inc. , 55 F. Supp. 2d at 751 (holding unconstitutional under the First Amendment a statute prohibiting the “knowing[] disseminat[ion] to a min or [of] sexually explicit visual or verbal material that is harmful to minors”); see also Shea v. Reno , 930 F. Supp. 916 (S.D.N.Y. 1996) (prior to the Supreme Court’s analysis in Reno , holding the CDA unconstitutional under the First Amendment).-23- 2. Commerce Clause The district court also held that plaintiffs in thi s case demonstrated a likelihood of success on their argument that sectio n 30-37-3.2(A) violated the Commerce Clause. Although we need not reach this i ssue, since we have already held plaintiffs have demonstrated a likelihood of s uccess on their First Amendment argument, we do so, albeit briefly. The “dormant implication of the Commerce Clause pro hibits state . . . regulation . . . that discriminates against or undu ly burdens interstate commerce and thereby ‘imped[es] free private trade in the national marketplace.’” General Motors Corp. v. Tracy , 519 U.S. 278, 287 (1997) (quoting Reeves, Inc. v. Stake , 447 U.S. 429, 437 (1980)) (citations omitted). Mor eover, the Supreme Court has long recognized that certain types of commerce are uniquely suited to national, as opposed to state, regulation. See, e.g. , Wabash, St. L. & P.R. Co. v. Illinois , 118 U.S. 557 (1886) (holding states cannot regulate rai lroad rates). The district court held that section 30-37-3.2(A) v iolated the Commerce Clause in three ways: (1) it regulates conduct occ urring wholly outside of the state of New Mexico; (2) it constitutes an unreason able and undue burden on interstate and foreign commerce; and (3) it subject s interstate use of the Internet to inconsistent state regulation. The court below largely relied upon the detailed Commerce Clause analysis in American Libraries Ass’n v. Pataki , 969 F. Supp.-24-

160, 168-83 (S.D.N.Y. 1997). We agree with that analysis. As the Pataki court observed: The unique nature of the Internet highlights the li kelihood that a single actor might be subject to haphazard, uncoord inated, and even outright inconsistent regulation by states that the actor never intended to reach and possibly was unaware were bei ng accessed. Typically, states’ jurisdictional limits are relate d to geography; geography, however, is a virtually meaningless cons truct on the Internet. Id. at 168-69.

a. Regulation of conduct outside New Mexico Defendants argue that section 30-37-3.2(A), properl y construed, only addresses intrastate conduct. As the Pataki court stated in rejecting that same argument, that analysis “is unsupportable in light of the text of the statute itself . . . and the reality of Internet communications.” Pataki , 969 F. Supp. at 169. Section 30-37-3.2(A) contains no express limitationconfining it to communications which occur wholly within its border s. Rather, it “applies to any communication, intrastate or interstate, that fits within the prohibition and over which [New Mexico] has the capacity to exercise criminal jurisdiction.” Pataki , 969 F. Supp. at 169-70. Moreover, the nature of the Internet forecloses the argument that a statute such as section 30-37-3.2(A) applies only to intras tate communications. Even if it9Although defendants initially attempted to argue th at the “non-commercial,

recreational use” of the Internet is not “commerce” subject to the Commerce Clause, they wisely appeared to withdraw from that argument and agree that Internet communication can affect interstate commer ce and, therefore, be subject to the Commerce Clause. -25- is limited to one-on-one e-mail communications, as defendants assert section 30- 37-3.2(A) properly is limited, there is no guarante e that a message from one New Mexican to another New Mexican will not travel thro ugh other states en route.
See Pataki , 969 F. Supp. at 171; see also Cyberspace, Communications, Inc. , 55 F. Supp. 2d at 751 (“virtually all Internet speech is . . . available everywhere”). Thus, section 30-37-3.2(A) “cannot effectively be l imited to purely intrastate communications over the Internet because no such co mmunications exist.” Pataki , 969 F. Supp. at 171. We therefore agree with the district court that section 30-37-3.2(A) represents an attempt to regul ate interstate conduct occurring outside New Mexico’s borders, and is acco rdingly a per se violation of the Commerce Clause. 9

b. Burden on interstate commerce compared to local benefit We further agree, for the reasons outlined in Pataki , that section 30-37-3.2(A) is an invalid indirect regulation of i nterstate commerce because, under the balancing test of Pike v. Bruce Church, Inc. , 397 U.S. 137, 142 (1970), the burdens on interstate commerce imposed by secti on 30-37-3.2(A) exceed any-26-

local benefits conferred by the statute. See V-1 Oil Co. v. Utah State Dep’t of Pub. Safety , 131 F.3d 1415, 1423-24 (10th Cir. 1997). Defendants’ primary response to this argument is to reiterate the importance of the state’s interest in protecting minors from sexually oriented materials which are “harmful to minors.” We agree that the protection of minors fr om such materials is an undeniably compelling governmental interest, but th e question in the context of the validity of section 30-37-3.2(A) is whether the means chosen to further that interest (§ 30-37-3.2(A)) excessively burden inters tate commerce compared to the local benefits the statute actually confers. The l ocal benefits of section 30-37-3.2(A), particularly as narrowly construed bydefendants, are not huge. As the Pataki court noted with respect to the New York statute c hallenged in that case, section 30-37-3.2(A) “can have no effect on c ommunications originating outside the United States.” Pataki , 969 F. Supp. at 178. Further, New Mexico’s “prosecution of parties from out of state who have allegedly violated [section 30-37-3.2(A)], but whos e only contact with [New Mexico] occurs via the Internet, is beset with prac tical difficulties, even if [New Mexico] is able to exercise criminal jurisdiction over such parties.” Id. Finally, defendants’ own interpretation of the statute—that it applies only to one-on-one communications between a sender in New Mexico and arecipient in New Mexico whom the sender knows to be a minor—renders it so n arrow in scope that the-27-

actual benefit conferred is extremely small. As an other district court has observed with respect to the CDA, which defendants argue is broader in scope than section 30-37-3.2(A): [The statute] will almost certainly fail to accompl ish the Government’s interest in shielding children from po rnography on the Internet. Nearly half of Internet communications o riginate outside the United States, and some percentage of that figu re represents pornography. Pornography from, say, Amsterdam will be no less appealing to a child on the Internet than pornograp hy from [Albuquerque], and residents of Amsterdam have litt le incentive to comply with [the statute].
ACLU v. Reno , 929 F. Supp. 824, 882 (E.D. Pa. 1996), aff’d , 521 U.S. 844 (1997). Balanced against those limited local benef its “is an extreme burden on interstate commerce.” Pataki , 969 F. Supp. at 179. Thus, section 30-37-3.2(A) constitutes an invalid indirect regulation of inter state commerce.

c. Inconsistent regulation The third ground upon which the district court heldsection 30-37-3.2(A) violates the Commerce Clause is that it subjects th e use of the Internet to inconsistent regulations. As we observed, supra , certain types of commerce have been recognized as requiring national regulation. See, e.g., Wabash, St. L. & P. Ry. Co. , 118 U.S. at 574-75 (noting that “[c]ommerce with foreign countries and among the states” requires “only one system of rule s, applicable alike to the whole country”). The Internet is surely such a med ium. We agree with the court10 In their opening appellate brief, defendants assert ed that “[c]ertification

may be appropriate on remand, [but they] do not req uest it at this juncture of the litigation.” Defendants’ Br. at 64. In their repl y brief, however, they argued that our resolution of the scope of section 30-37-3.2(A) would “improperly oust[] the role of state courts in the interpretation of New M exico’s statutes.” Defendants’ Reply Br. at 18. At oral argument, they asked us t o certify to the New Mexico Supreme Court the proper interpretation of section 30-37-3.2(A). Or, as they argued below, they would have us abstain from consi dering the constitutionality of the statute, pending an interpretation of the st atute by the New Mexico courts. The Supreme Court has observed that it is “particul arly reluctant to abstain in cases involving facial challenges based on the F irst Amendment.” City of Houston v. Hill , 482 U.S. 451, 467 (1987). Given the obvious and facial overbreadth of the state statute at issue, and the fact that it is not reasonably susceptible to an appropriate limiting construction , abstention or certification are unnecessary. -28- in Pataki , when it observed, “[t]he Internet, like . . . rai l and highway traffic . . ., requires a cohesive national scheme of regulation s o that users are reasonably able to determine their obligations.” Pataki , 969 F. Supp. at 182; see also Kenneth D. Bassinger, Dormant Commerce Clause Limits on State Regulationof the Internet: The Transportation Analogy , 32 Ga. L. Rev. 889, 904 (Spring 1998) (“The structure of the Internet bears a striking resemblance to a railroad, highway, or other means of interstate transportation.”). 10 Plaintiffs have accordingly met their burden of dem onstrating a likelihood that they will prevail on their claims that section30-37-3.2(A) violates both the First Amendment and the Commerce Clause. We turn n ow to the remaining requirements for the issuance of a preliminary inju nction.-29-

B. Irreparable Harm The district court held that “[p]laintiffs have mad e a sufficient showing that they will suffer irreparable injury—at a minimum th e curtailment of their constitutionally protected speech—if the preliminary injunction is not granted.” Johnson , 4 F. Supp. 2d at 1034. We agree. See Elrod v. Burns , 427 U.S. 347, 373 (1976); see also Pataki , 969 F. Supp. at 168 (noting that the “[d]eprivati on of the rights guaranteed under the Commerce Clause con stitutes irreparable injury”). C. Injury Outweighs Harm We further agree with the district court’s conclusi on that “the threatened injury to Plaintiffs’ constitutionally protected sp eech outweighs whatever damage the preliminary injunction may cause Defendants’ in ability to enforce what appears to be an unconstitutional statute.” Johnson , 4 F. Supp. 2d at 1034.

D. Public Interest Finally, we further agree that “the preliminary inj unction will not be adverse to the public interest as it will protect the free expression of the millions of Internet users both within and outside of the State of New Mexico.” Id.

III. Scope of Injunctive Relief-30-

Defendants argue the district court erred in includ ing New Mexico’s district attorneys within the scope of the injunction. We d isagree. Fed. R. Civ. P. 65(d) provides that an injunction binds not only the part ies but also “their officers, agents, servants, employees, and attorneys, and . . . those persons in active concert or participation with them who receive actu al notice of the order by personal service or otherwise.” This action is a f acial challenge to a New Mexico statute, brought against the governor and attorney general of New Mexico in their official capacities. Thus, it is an action against the State of New Mexico, see Monell v. New York City Dep’t of Social Servs. , 436 U.S. 658, 690 n.55 (1978) (observing that “official-capacity suits generally represent only another way of pleading an action against an entity of which an of ficer is an agent”), seeking to enjoin enforcement of section 30-37-3.2(A) by the S tate. Defendants argue the district attorneys received no notice of, nor have they participated in, this action, and they argue there is no indication that districtattorneys are “persons in active concert or participation with” defendants. “The district attorney is the law officer of the di strict [and] is to prosecute criminal cases on behalf of the State.” State v. Session , 574 P.2d 600, 601 (N.M. Ct. App. 1978); see also N.M. Stat. Ann. § 36-1-18 (describing duties of di strict attorney). To the extent district attorneys would attempt to enforce section 30-37-3.2(A), an injunction against the governor an d attorney general prohibiting11 Defendants also argue that the district court, rath er than enjoining the

entire statute, should have tailored the injunctionto enjoin only the unconstitutional aspects of section 30-37-3.2(A). They suggest, and we discern, no reasonable way to do so, see Brockett v. Spokane Arcades, Inc. , 472 U.S. 491, 504-05 (1985), and neither we, nor the district cou rt, may rewrite the statute to avoid the constitutional problems we have identifie d. See United States v. National Treasury Employees Union , 513 U.S. 454, 479 & n.26 (1995). Defendants also challenge the district court’s inju nction to the extent it prohibits them from “investigating or reviewing any matter ba sed on or premised upon” section 30-37-3.2(A). Order, Appellants’ App. Vol. II at 415. This argument is meritless. If section 30-37-3.2(A) is deemed uncon stitutional in its entirety, there could be no investigation or review premised upon i t. -31- such enforcement binds those attorneys. The distri ct court properly included district attorneys within its grant of injunctive relief. See Pataki , 969 F. Supp. at 163 (holding that “a preliminary injunction would e ffectively bar enforcement of the Act whether the prosecution happened to be brou ght directly by the Attorney General’s office or by one of the individual District Attorneys”). 11

CONCLUSION For the forgoing reasons, we AFFIRM the issuance of a preliminary injunction against enforcement of section 30-37-3.2 (A).