THREE-JUDGE PANEL OPINION IN SHEA V. RENO Here is the full text of the 75-page decision by which a three-judge panel of the U.S. District Court in New York on July 29 blocked enforcement by the government of the Communications Decency Act, which had sought to invoke criminal penalties for transmission of "indecent" material across the Internet. The decision came in a suit brought by Joseph Shea, editor of The American Reporter the nation's first all-digital daily. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (Submitted: June 13, 1996 / Decided: July 29, 1996) 96 Civ. Q976 7)LC) JOE SHEA, on behalf of THE AMERICAN REPORTER, PlaintifF; v. JANET M. RENO, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Defendant. Before: CABRANES, Circuit Judge,*. SAND**. and COTE,*** District Judges. The plaintiff, an editor, publisher, and part-owner of a newspaper distributed exclusively through electronic means, brings this First Amendment challenge to S 223(d) of the Communications Decency Act of 1996 ("CDA") criminalizing the use of interactive computer services to display "patently offensive" sexually explicit material such that it is *The Honorable Jose A. Cabranes of the United States Court of Appeals for t he Second Circuit. **The Honorable Leonard B. Sand of the United States Distria Court for the Southern District of New York ***The Honorable Denise Cote of the United States District Court for the So uthern District of New York. available to persons under the age of eighteen. The plaintiff seeks a preliminary injunction barring application of the section. The three-judge panel, appointed pursuant to 28 U.S.C. ~ 2284, held that: (1) plaintiff has not sustained his burden of demonstrating a likelihood of success on his claim that ~ 223(d) is unconstitutionally vague, but that (2) the plaintiff has demonstrated a likelihood of success on his claim that ~ 223(d) is unconstitutionally overbroad in that it bans protected indecent communication between adults. On this second point, the court concluded that most content providers' ability to comply with the requirements of the affirmative defenses set out in the statute depends on the actions of third parties, such as software manufacturers, whose cooperation is not required under the statute or otherwise mandated. The technological impossibility of independent compliance with the aff~rmative defenses renders S 223(d) unconstitutional as an overbroad prohibition on constitutionally protected indecent speech between adults. RANDALL J. BOE, JAMES K. STRONSKI, Jill R. Newman, Fabienne M. Clermont, Wayne H. Matelski, Arent Fox Kintner Plotkin & Kahn, New York, New York, and Washington, D.C.), for the plaintiff WILLIAM J. HOFFMAN, (Mary Jo White, United States Attorney, Marla Alhadeff, John McEnany, Assistant United States Attorneys),for the defendant. (Cathleen A. Cleaver, Family Research Counsel; Bruce A. Taylor, Janet M. LaRue, National Law Center for Children and Families; Paul J. McGeady, Robert W. Peters, of counsel, for amici cunae National Law Center for Children and Families, Family Research Council, "Enough Is Enough!" Campaign, National Coalition for the Protection of Children & Families, and Morality in Media.) MEMORANDUM AND ORDER JOSE A. CABRANES, Circuit Judge: We address here the constitutionality of a provision of the Communications Decency Act of 1996 ("CDA") with an undeniably worthy goal: to limit the exposure of children to sexually explicit, though not legally obscene, materials available "on line" - that is, capable of being displayed and ~accessed" by increasingly common interactive computer services. 47 U.S.C. ~ 223(d), as added by the CDA on February 8, 1996, criminalizes the use of an interactive computer service to display, in a manner available to persons under eighteen, sexually explicit material that is "patently offensive" by contemporary community standards. Plaintiff Joe Shea, the editor, publisher, and part-owner of a newspaper distributed solely by electronic means, filed this aaion on February 8, 1996, claiming that ~ 223(d) is (1) void for vagueness, in that it fails to give ordinary citizens sufficient notice of what condua will subjea them to prosecution or criminal liability; and (2) substantially overbroad, in that it targas a broader category of speech than necessary to achieve the government's goal and constitutes a ban on certain constitutionally proteaed speech between adults. As editor of an on-line newspaper, the plaintiff is one of a growing number of citizens who employ an array of widely accessible and constantly evolving media technologies to gather and disseminate information and ideas. In passing the CDA, Congress explicitly recognized that these technologies foster "true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intelleaual aaivity." Pub. L. No. 104-104, ~ 509(a)(3), 110 Stat. 56, 138 t1996) (to be codified at 4711.S.C. ~ 230(a)(3J). The range of tools and forums available for users of interactive computer services is astounding: with access to the web of computer networks known as the Internet, a scholar can conesa a distant computer and make use of its capabilities; a researcher can peruse the card catalogs of libraries across the globe; users around the world can debate politics, sports, music, and literature. However trivial some of their uses might seem, emerging media technologies quite simply offer an unprecedented number of individual citizens an opportunity to speak and to be heard-at very l ittle cost-by audiences around the world. In that sense, we are encountering a communications medium unlike any we have ever known. In an attempt to limit the availability of certain materials in interaaive computer services, Congress enamed a statute of unprecedented sweep: the new S 223(d ) purports to regulate not only how commercial purveyors of obscene or pornographic mater ials may advertise and sell their products on line, but also how private individuals who choose to exchange certain constitutionally proteaed communications with one another can do so. The question presented is whether our Constitution tolerates this level of governmental intrusion into how adults speak to one another. We conclude, first, that the plaintiff has not sustained his burden of demo nstrating a likelihood of success on his claim that 6 223(d) is unconstitutionally vazu e. The definition 4 of material regulated by this seaion is a familiar one, repeatedly upheld a gainst vagueness challenges in a line of jurisprudence concerning television and radio broad casting, cable programming, and commercial telephone services. We do, however, conclude th at the plaintiff has demonstrated a likelihood of success on his overbreadth claim , that ~ 223(d) would serve as a ban on constitutionally protected indecent communication b etween adults. The Government concedes that stria scrutiny is appropriately applied to thi s claim and that ~ 223(d) would, on its own, aa as an unconstitutional total ban on ind ecen communication, proteaed and unproteaed alike, but argues that two affirmati ve defenses set out in ~ 223(e)(5) serve to shield adults engaging in constitutionally proteaed indecent communication from criminal liability. The evidentiary record in this case compels the conclusion that, given the current state of technology, most adult content providers wishing to engage in cons titutionally proteaed indecent speech will be unable to avail themselves of these affirm ative defenses. Only a limited subset of on-line content providers, commercial providers on the World Wide Web, can avail themselves of the defense set out in ~ 223(e)(5)tB), le aving both non- commercial providers of Web content and content providers using all other m odes of on- line communication unproteaed. The evidence further demonstrates that conte nt providers' ability to comply with the terms of the second defense-the so ca lled good-faith defense-depends on the aaions of third parties, such as software manufaaure rs, whose cooperation is not required under the CDA or otherwise mandated. There is n o feasible means, with our current technology, for someone to provide indecent content on line with any certainty that even his best efforts at shielding the material from min ors will be "effeaive," as the language of the good-faith defense requires. Because neither of the affirmative defenses set out in ~ 223(e)(5) can, wit h our current technology, effectively protea adult content providers wishing to e ngage in constitutionally proteaed indecent communication, we reach the inescapable conclusion that ~ 223(d) will serve to chill protected speech. We therefore find that the plaintiff has demonstrated a likelihood of success on ehe merits of his claim that ~ 223( d) is unconstitutionally overbroad. We are mindful of our obligation to construe a federal statute to avoid constitutional problems if it is possible to do so, but we are equally mind ful of the limits of the judicial power under our Constitution and we decline the Government' s invitation to perform radical surgery on a statute dealing with a difficult problem in a rapidly changing area of technology; in sum, we respeafully decline the invitation to legislate from the bench. In setting aside the challenged provisions, we do not question the legitima cy of the government's interest in safeguarding children from exposure to certain mat erials available on line nor suggest that other legislation on another day, carefully tailor ed to technological realities, may not pass constitutional muster. We also do not consider, nor attempt to delineate, the range of circumstances, if any, in which Congress could now or in the future constitutionally impose content-based restrictions upon communications in t he developing medium we explore here. 6 I. BACKGROUND Plaintiff Joe Shea is the editor-in-chief, part-owner, and publisher of the Amencan Report~r, a daily newspaper distributed solely by elearonic means. On Febru ary 8, 1996, following the signing of the Telecommunications Aa of 1996, Pub. L. No. 104 -104, 110 Stat. 56, the Amencan Report~r published an editorial, (Complaint, Ex. 1) c riticizina Title V of the Aa, known as the Communications Decency Aa of 1996 ("CDA"). The ed itorial contained language arguably falling within the scope of a provision of the CDA criminalizing the transmission or display of certain content in a manner av ailable to mmors: Whoever- (1) in interstate or foreign communications knowingly- (A) uses an interaaive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interaaive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depias or describes, in terms patently offensive as measu red by contemporary community standards, sexual or excretory aaivities or organs, regardless of whether the user of such service placed the call or initiated the communication; . . . shall be fined under title 18, United States Code, or imprisoned not more t han two years, or both. Pub. L. No. 104104, S 502(2)(d), 106 Stat. at 133 (to be codified at 47 U.S .C. ~ 223(d)). Also on February 8, the plaintiff f~led this aaion on behalf of the Am~ncan Reporter, seeking a declaration that 47 U.S.C. ~ 223(d) is unconstitutionally overbro ad and vague. 7 On February 17, the plaintiff moved for preliminary injunaive relief to pre vent the Department of Justice from enforcing the provision in question. Pursuant to S 561(c) of the Telecommunications Aa and 28 U.S.C. ~ 2284, the Chief Judge of the United States Court of Appeals for the Second Circuit de signated this three-judge distria court to consider the plaintiff's facial challenge to t he constitutionality of ~ 223(d). The Court heard opening arguments on April 3, 1996. Because th e plaintiff's facial challenge to ~ 223(d) raised the question of whether Internet users can, under current technology, meet the requirements for certain defenses provided for in the Aa, the Court concluded that an evidentiary hearing would be appropriate. In light of the pendency of consolidated proceedings for preliminary injunaive relief before a three-ju dge court in the Eastern Distria of Pennsylvania raising, among other claims, a facial chall enge to S 223(d), see Complaint, American Civil Liberties Union u Reno, No. 96-963 (E.D. Pa. filed Feb. 8, 1996); Complaint, American Library Ass'n u U.S. Dep't of Justice, No. 96-14 58 (E.D. Pa. filed Feb. 27, 1996) (colleaively "tbe Philadelphia litigation"), the Court direaed the parties to consider methods of easing the fact-finding process by entering into a r ange of stipulations regarding the current state of technology and incorporating re levant portions of the record in the Philadelphia litigation. The Court received additional demonstrative and testimonial evidence on April 29, April 30, and May 6, and heard closin g arguments on June 3, 1996. Following supplemental briefing by the parties, the plaintiff 's motion for preliminary injunctive relief was submitted for decision on June 13, 1996. On June 11, 1996, the three-judge court in the Philadelphia litigation conc luded, inter alia, that the provision of the CDA here challenged by the plaintiff does not withstand constitutional scrutiny. American Civ~l Liberties Union u Reno, N o. Civ. A. 96- 963, 1996 WL 311865, at *27 ~.D. Pa. June 11, 1996) ("AC' U/ALA"). All thre e judges agreed that the CDA is substantially overbroad, in that it effectively forc es many Internet users (specifically, non-commercial, not-for-profit entities and "even many commercial organizations") to forgo constitutionally protected speech or risk criminal prosecution. Id. at *32-*33 (Sloviter, C.J.); id. at *37 tBuckwalter, J.); id. at *49 (Dalze ll, J.). Additionally, two of the judges concluded that ~ 223(d>'s definition of covered speech is unconstitutionally vague. Id. at *36 (Sloviter, C.J.); id. at *37 (Buckwalt er, J.). The decision in the Philadelphia litigation does not preclude this Court from d eciding the issues presented,' to which we now turn. 'Following the Philadelphia decision, the Court ordered the parties tO file letter briefs addressing the preclusive effect, if any, of the Philadelphia court's findi ngs of fact on this proceeding. "Under the judicially developed doctrine of collateral estoppel , once a court has decided an issue of fact or law necessary to its judgment, that decisio n is conclusive in a subsequent suit based on a different cause of action involving a party to t he prior litigation." United States u Mendoza, 464 U.S. 154, 158 (1984). Although th e doctrine can apply where there is no mutuality of parties and can be used offensively, i d. at 158-59, Men doza makes clear that nonmutual offensive collateral estoppel does not apply against the government, at least as to issues of law, id. at 162-63. Although courts ha ve observed that Mendoza leaves open the possibility that nonmutual collateral estoppel may apply against the government with respect to factual issues, see, e.g., Adkins v. Commiss ioner of Internal Revenue, 875 F.2d 137, 141 (7th Cir. 1989), we conclude that its applicatio n is inappropriate here in light of the "avowedly tentative" nature of the Philadelphia court' s findings. Lummus Co. u Commonwlth Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961), c ert. denied, 368 U.S. 986 (1962); see ACLU/ALA, 1996 WL 311865, at *13 n.12 ("Be cause of the rapidity of developments in this field, some of the technological facts we have found may become partially obsolete by the time of publication of these [f]indings.~) . Although many of our findings overlap with those made in ACLU/ALA, we recognize that Inte rnet technology is rapidly evolving, and that evidence of new developments was added to the record before us as late as June 7, 1996. 9 II. FINDINGS OF FACT We enter the following findings of fact, many of which are undisputed, the subject of stipulations by the parties, or submitted by the defendant and adopted b y us, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. Although we here con sider a so- called facial challenge to a statute, we deemed it appropriate and necessar y in the unusual circumstances presented here, and a reasonable exercise of our discretion, to establish a basic record of the faas regarding the new and evolving communications medi a that is the subject of this legislation. Section 223(d) targets the use of an "interactive computer service" to send or display patently offensive materials. Although ~ 223 itself contains no definition of that term, the definition applicable to the new 47 U.S.C. ~ 230-also added by the CDA-make s clear that the term encompasses means of making "content"2 available to multiple users both on the vast web of linked networks popularly known as "the Internet" and on ot her information systems (such as electronic bulletin boards maintained by educa tional institutions or nonprofit organizations) not physically linked to the Inter net. See Pub. L. No. 104-104, ~ 509(e)(2), 110 Stat. at 139 (to be codified at 47 U.S.C. S 2 30(e)(2)). We draw upon the stipulations of the parties and the testimony adduced at the three -day evidentiary hearing to describe: (1) the nature of the medium targeted by ~ 223(d), foc using in part on the degree of control that those who transmit content have over who will re ceive it; (2) the availability of certain categories of potentially objectionable material on line; (3) the 2We use the term "content" to refer to any text, data, sound, program, or v isual image transmitted over or mace available for retrieval on an interactive computer service. 10 development of software and labeling standards enabling parents tO limit th eir children~s exposure to objeaionable on-line content; and (4) the potential for tagging and verification procedures that content providers can use in an effort to shield minors fro m sexually explicit content that they provide.3 As we do so, we unavoidably-and with a pologies to all others with a similar aversion to "cyberspeak"-adopt some of the termin ology that has developed in conjunaion with this technology. We endeavor, to the extent po ssible, to avoid the jargon of this field, and to define our terms wherever possible, for the sake of the clarity of this record and this opinion, as well as for the benefit of any reader required to review our work. A. The Development of the Internet Although "the Interna" now formally describes a colleaion of more than 50,0 00 networks linking some nine million host computers in ninay countries, it ha s existed for nearly three decades on a much smaller scale. What we now refer to as the I nternet grew out of an experimental projea of the Department of Defense's Advanced Resea rch Projeas Administration ("ARPA") designed to provide researchers with direa access t o supercomputers at a few key laboratories and to facilitate the reliable tra nsmission of vital communications. (Declaration of William J. Hoffman ("Hoffman Decl."), Ex. 4 , at 11-12) ARPA supplied funds to link computers operated by the military, defense con trzaors, and 3 While ~ 223(d) regulates more than the content of Internet communications , we focus mainly on the range of tools and services available to individuals with Int ernet access, recognizing that the vast majority of content available through the use of an interaaive computer service is in fact available on the Internet. 11 universities conduaing defense-related research through tedicated phone lin es, creating a "network. known as ARPANet. (Parties' Stipulations in Preparation for Preli minary Injunction Hearing ("Joint Stip.n) 11~7; Hoffman Decl., Ex. 3, at 3; id Ex. 4, at 11) Programs on the linked computers implemented a technical scheme known as "p acket- switching," through which a message from one computer to another would be s ubdivided into smaller, separately addressed pieces of data, known as "packets," sent independently tO the message's destination and reassembled upon arrival. Joint Stip. 19) Eac h computer on the network was in turn linked to several other computers, creating any number of routes that a communication from one computer could follow to reach its des tination. If part of the network were damaged, a portion of the message could be re-rout ed automatically over any other path to its ultimate destination, a characteri stic of the network intended initially to preserve its operability in the event of enem y attack. (Id 11 7-8; Hoffman Decl., Ex. 3, at 3; id Ex. 4, at 12) Having successfully implemented a system for the reliable transfer of infor mation over a computer network, ARPA began to support the development of communica tions protocols for transferring data between different types of computer network s. Universities, research facilities, and commercial entities began to develop and link toge ther their own networks implementing these protocols; these networks included a high-speed "backbone" network known as NSFNet, sponsored by the National Science Foundation, smal ler regional networks, and, eventually, large commercial networks run by organi zations such as Sprint, IBM, and Performance Systems International kommonly known as "PS I"). (Hoffman Decl., Ex. 3, at 3; id Ex. 4, at 13-14) As faster networks develop ed, most 12 network traffic shifted away from ARPANet, which formally ceased operations in 1990. (Id. Ex. 3, at 3) What we know as athe Internet" today is the series of lin ked, overlapping networks that gradually supplanted ARPANet. Because the Internet links toge ther independent networks that merely use the same data transfer protocols, it c annot be said that any single entity or group of entities controls, or can control, the c onsent made publicly available on the Internet or limits, or can limit, the ability of others to access public content. Rather, the resources available to one with Internet access a re located on individual computers around the world. Joint Stip. 1 ll) It is estimated that as many as forty million individuals have access to th e information and tools of the Internet, and that figure is expected to grow tO 200 million by the year 1999. (Id. 13) Access tO the Internet can take any one of several forms. First, many educational institutions, businesses, libraries, and individual commun ities maintain a computer network linked directly to the Internet and issue account numbers and passwords enabling users to gain access to the network directly or by modem.4 (Id. 11 12-14) Second, "Internet service providers," generally commercial entities chargin g a monthly fee, offer modem access to computers or networks linked direaly to the Internet. (Id 116) Third, national commercial aon-line services"-such as America Online, Compu Serve, Prodigy, and Microsoft Network-allow subscribers tO gain access to the Inte rnet while providing extensive content within their own proprietary networks. (Id. 1 l 7) Finally, 4A "modem" (a contraaion of amodulator" and "demodulator") is a device that translates digital information into a signal for transmission over a teleph one line (amodulation") and translates a signal received over a telephone line into digital information ("demodulation"). 13 organizations and businesses can offer access to electronic bulletin-board systems-which, like national on-line services, provide certain proprietary content; some b ulletin-board systems in turn offer users links to the Internal (Id 1 18) B. Categones of Internet Use For our purposes, there are two loose and overlapping categories of Interne t use. First, an individual who has secured access to thc Internet can correspond or exchange views with one or many other Internet users. Second, a user can locate and retrieve information available on other computers. We explore these categories in gr eater detail below. As will become clear, distinaions in how Internet content is transmi tted affea the degree of control that providers of content have over who will be able to g ain access to their communications;s we will return to the legal significance of these di stinaions at a later junaure. For any communication to take place over the Internet, two p ieces of software,6 adhering to the same communications protocol, are required. A us er must have swe use the term acontent provider" to refer to any Internet "speaker"-that is, a user who transmits or makes available any content over the Internet. Although th e term is not used in the statutory provision at issue, "information content provider" is elsewhere defined in the CDA as "any person or entity that is responsible, in whole o r in part, for the creation or development of information provided through the Internet or any other interaaive computer service." Pub. L. No. 104-104, S 509(e)(3), 110 Stat. a t 139 (to be codified at 47 U.S.C. S 230(e)(3)). The phrase serves as a reasonable short hand for the category of individuals targaed by the CDA-persons who send or display Inte rnet content. See S. CONI;. REP. No. 230, 104th Cong., 2d Sess. 188 (1996) (stat ing that 223(d)(1) applies to acontent providers"). 6We use the term asoftware" to refer to the combination of programs and pro cedures that serve as instruaions to the computer. The term is often used in contra st with ahardware," which refers to a computer system's physical elements. 14 access to certain kinds of "client" software, which enables his computer to communicate with and make requests of remote computers where information is stored; the se remote computers must be running "server" software, which provides information in response to requests by client software. (Declaration of Dr. Dan R. Olsen, Jr. ("Olsen Decl."), 11 13- 14)7 1. Communicating with Other Internet Users Perhaps the most widely used Internet service is elearonic mail, or "e-mail ." Using any one of dozens of available amailers"-client software capable of reading and writing e-mail-a user is able to address and transmit a message to one or more spec ific individuals. Joint Stip. 121) A user can also asubscribe" to an electronic mailing list on a topic of interest; the user receives a copy of messages posted by other subscribers and, in turn, can post messages for forwarding to the full mailing list. Once a mailing list iS established, it is typically maintained using a "mail exploder"-a program such as "listserv" r unning on the server on which the list resides-that automatically (i.e., without human in tervention) responds to a user's request to be added to or removed from the list of sub scribers and retransmits messages posted by a subscriber to others on the mailing list. (Id 122) Some mailing lists are aclosed": a user's request to join the list requires the approval of an individual who maintains the list. (Id.) Mailing lists (both open and close d) may also be moderated": all messages posted to the list are fo~varded to a moderator, w ho approves 7The Court received direa testimony of the parties' experts on technologica l issues (Dr. Olsen for the defendants and Clay Shirky for the plaintiffs) by affidavit. 15 certain messages and retransmits them to subscribers. (Id.) An individual s ending a message that will be retransmitted by a mail exploder program has no way of knowing the e-mail addresses of other subscribers. (Olsen Decl. 119; Testimony of Gordo n C. Galligher, Jr., Tr. at 181) Even if the user could obtain an e-mail address for each subscriber to a particular list, those addresses alone would provide no aut horitative information about subscribers. There is no directory that identifies person s using a certain ~mail address. In addition, a user can avoid disclosing his true e-mail add ress by developing an e-mail "alias" or by using an "anonymous remailer"-a server t hat purges identifying information from a communication before forwarding it to its de stination. (Defendant's Response to Plaintiff's Request for Admissions ("Defendant's A dm.n) No. 22; Galligher Test. at 173) Internet users may also transmit or receive "articles" posted daily tO thou sands of discussion groups, arranged by subject matter and known as "newsgroups," av ailable through an electronic bulletin-board system known as "Usena." When a user w ith access to a Usenet server-that is, a computer participating in the Usena system-po sts an article tO a particular newsgroup, the server automatically forwards the article to adjacent Usena servers, which in turn forward it to other servers, until the article is av ailable on all Usena sites that furnish access to the newsgroup in question. Joint Stip. 123) On ce a message reaches a particular Usenet site, it is temporarily stored there so that in dividual users-runn~ng client software, known as a "newsreader,~ capable of sorting articles according to header information identi*ing the newsgroup to which the artic le was posted-can review and respond tO the message. (Id.; Hoffman Decl., Ex. 4, a t 129) Some 16 Usenet newsgroups are moderated; messages to the newsgroup are forwarded to an individual who seleas those appropriate for distribution. Joint Stip. 123) Because Usenet articles are distributed to (and made available on) multiple servers, one w ho posts an article to a newsgroup has no way of knowing who will choose tO rarieve it, whaher or not the newsgroup is moderated. (Calligher Test., Tr. at 170, 17~75) There is no ne wsgroup equivalent of a "closed" mailing list: access to a particular newsgroup can only be limited by restriaing the number of servers participating in the newsgroup. ~estimo ny of Clay Shirky, Tr. at 251) The Internet also offers opportunities for multiple users to interaa in rea l time. Using a program called "Talk," two users can exchange messages while they a re both on line; a message typed on one user's computer will appear almost immediately on the other's screen. Joint Stip. 125) Servers running so-called "chat" software, such as Interna Relay Chat ("IRC"), permit multiple users to converse by seleaing one of ma ny discussion "channels" aaive at any time. Commercial on-line services such as America O nline, CompuServe, Prodigy, and the Microsoft Nawork offer their own chat systems for their members. (Id. 126) Having joined a channel, the user can see and read messa ges transmitted by other users, each identified by a name the user seleas upon joining the channel. (Id. 125) Individual participants in IRC discussions know other pa rticipants only by the names they choose upon entering the discussion; users can participat e anonymously by using a pseudonym. 17 2. Locating and Retrieving Information on the Internet Individuals with Internet access can take advantage of a number of tools fo r locating and rarieving information and resources stored on remote computers. One who wishes to make certain articles, files, or software available to other users will set up a server, adhering to certain communications protocols, capable of rarieving and presenting st ored information in response to a request from client software using the same co mmunications protocol. (Olsen Decl. 1113, 16; Galligher Test., Tr. at 131) a. File-Trar.sfer Protocol (~FIP=) One type of software implements a sa of conventions for copying files from a host computer known as "file-transfer protocol" ("FTP"). With appropriate client software, a user with an account on the host computer can contaa the server, view a dir eaory of available files, and copy one or more of those files to his own computer. I n addition to making files available to users with accounts, thousands of content provide rs also make files available for "anonymous" rarieval by users who do not possess sn account o n the host computer.' (Hoffman Decl., Ex. 3, at 1-2, 5; id. Ex. 4, at 187; Joint Stip. 129) A content provider who makes files available for rarieval by anonymous FTP has no way of discerning who gains access to the files. gTo locate files available for copying, a user can contaa an "Archie" serve r-a remote computer capable of searching direaories for file names containing a partic ular string of charaaers on FTP servers permitting anonymous rarieval. (Hoffman Declaratio n, Ex. 4, at 180-90) 18 b. ~Gopher. Servers A second type of server software capable of making available the resources of a host computer is known as a "gopher" program. Joint Stip. 1 30, Hoffman Decl., E x. 3, at 5) A gopher server presents information in a set of menus, enabling a user who gains access to the server to select a series of increasingly narrow menu irems before loca ting a desired file that can be displayed on or copied to the user's computer.9 (Galligher Test ., Tr. at 122; Hoffman Decl., Ex. 3, at 5) A content provider who maintains a gopher serve r ordinarily has no way of knowing who will gain access to the information made availabl e. c. The World W~ Web The third and perhaps best known method of locating and accessing informati on on the Internet is by exploring the World Wide Web. Documents available on the Web are not collected in any central location; rather, they are stored on servers a round the world running Web server software. Joint Stip. 11 31, 38, 40) To gain access to t he content available on the Web, a user must have a Web "browser"-client software, suc h as Netscape Navigator, Mosaic, or Internet Explorer, capable of displaying documents fo rmatted in "hypertext markup language" ("HTML"), the standard Web formatting language. (Galligher Test., Tr. at 125; Joint Stip. 11 31, 43) Each document has an a ddress, known as a Uniform Resource Locator ("URLn), identifying, among other things, the se rver on 9As with FTP servers, there are tools available for locating menus or items containing a certain string of characters: a "Veronica" server is capable of searching m enus on all gopher servers, while "Jughead" is an aptly named tool for searching menus on only a single server. (Galligher Testimony, Tr. at 124; Hoffman Decl., Ex. 3, at 5 ; id. Ex. 4, at 191-92) 19 which it resides; most documents also contain "links"-highlighted text or i mages that, when selected by the user, permit him to view another, related Web document . Joint Stip. 134) Because Web servers are linked to the Internet through a common communications protocol, known as hypertext transfer protocol ('`HTTP"), a user can move seamlessly between documents, regardless of their location; when a use r viewing a document located on one server selects a link to a document located elsewhe re, the browser will automatically contact the second server and display the document. Join t Stip. 1134. 37) Some types of Web client software also permit users to gain access to r esources available on FTP and gopher sites. A number of "search engines"-such as Yahoo, Magellan, Alta Vista, WebCrawle r, and Lycos-are available to help users navigate the World Wide Web.' For ex ample, the service Yahoo maintains a directory of documents available on various Web s ervers. A user can gun access to Yahoo's server and type a string of characters as a search request. Yahoo returns a list of documents whose entries in the Yahoo directory matc h the search string and organizes the list of documents by category. (Galligher Test., T r. at 134; Plaintiff's Ex. 3) Search engines make use of software capable of automatic ally contacting various Web sites and extracting relevant information. Some search engines, such as Alta Vista, store the information in a database and return it in response tO a u ser request. Others, such as Yahoo, employ a group of individuals to determine whether a nd how a site should be categorized in the Yahoo directory. (Galligher Testimony, Tr. at 137; ' Most of these services do not charge users for search requests and are su stained primarily by advertising revenues. (Galligher Test., Tr. at 13~37) 20 Supplemental Declaration of William J. Hoffman ("Hoffman Supp. Decl.~) Ex . A, at 3942 "Testimony of Donna L. Hoffman in ACLU/ALA)) As the growth in Internet use and the wide availability of tools and resour ces to those with access to the Internet suggest, the Internet presents extremely low entry barriers to those who wish to convey Internet content or gain access to it. In parti cular, a user wishing to communicate through e-mail, newsgroups, or Internet Relay Chat n eed only have access to a computer with appropriate software and a conneaion to the Internet, usually available for a low monthly fee. The user then in a sense becomes a public "speaker," able to convey content, at relatively low cost, to users around the world to whom it may be of interest. Those who possess more sophisticated equipment and greater technical expertise can make content available on the Internet for retrieva l by others tknown or unknown) by running a server supporting anonymous FTP, a gopher s erver, or a Web server. Yet content providers need not necessarily run their own serv ers or have the programming expertise to construa their own sites; they can lease space on a Web server from another or create a "home page" through an on-line commercial s ervice. The ease of entry of many speakers sets interzaive computer systems apart f rom any other more traditional communications medium that Congress has attempte d to regulate in the past. With one-way media such as radio and television broad casting or cable programming, a user is merely a listener or viewer; in the CDA, Congress so ught to target interaaive" computer systems through which a listener or viewer, by definit ion, has the power to become a speaker. The relative ease of speaker entry and the relat ive parity 21 among speakers accounts for the unprecedented and virtually unlimited oppor tunities for political discourse, cultural development, and intellectual activity that C ongress found to characterize emerging communication technologies. In seeking to describe the range of tools and opportunities for Internet us ers to "speak," we recognize that the categories we delineate are far from clean a nd the technology is far from st~tic. Indeed, by all indications, the way that we conceptualize various media that we have traditionally viewed as distinct-such as cable t elevision, telephones, and computer networks-will change dramatically as these media " converge" into common forms of communication. See Denver Area Educ. Telecommunication s Consortium u FCC ("Denver Area Consortium"), No. 95-124, 1996 WL 354027, at *31 & n.4 (U.S. June 28, 1996) (Souter, J., concurring); see also Jerry Berman & Daniel J. Weitzner, Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media, 104 YA1E L.J. 1619, 1619 n.1 (19 95); Art Kramer, Netwatch: The AJC's Daily Online Guide, ATL. J. & CONST., May 29, 1 996, at B04 (describing cable modem technology designed to offer Interna access through existing cable television connections) (Hoffman Supp. Decl., Ex. C, at 3~). Of course, our findings of fact are necessarily time-bound. We can only determine whether the statutor y provision at issue here, in light of the technology available during the pendency of thi s case, comports with the First Amendment. 22 C. Sexually Expl=t Content on the Intemet It is undisputed that there exists some content on the Internet that is-to use the Government's phrase-asexually explicit." (Defendant's Memorandum of Law, fi led March 19, 1996, at 11) The term "sexually explicit" is descriptive rather than le gal and does not appear in the statutory provision at issue, but the Government employs it a s a shorthand tO describe Internet content depicting "sexual or excraory aaivities or org ans"-possibly though not necessarily in a patently offensive way. (Defendant's Supplement al Memorandum of Law (aDefendant's Supp. Memo."), filed June 7, 1996, at 9) Th at is, the Government does not contend that all sexually explicit material is apatentl y offensive" and therefore within the scope of the CDA, but claims that there is certainly c ontent available on the Internet that is both sexually explicit and patently offensive. The testimony and demonstration of one of the Government's expert witnesses , Howard Schmidt, Director of the Air Force Office of Special Investigations, amply confirmed the availability of sexually explicit material on line. Neverthel ess, there is no persuasive evidence in the record to suggest, much less prove, that sexuall y explicit material easily "assaults" an unknowing user-as in other media, most notably televis ion and radio-or that any substantial proportion of Internet content is sexually ex plicit. 1. Ease of Access to Sexually Explicit Content The Government urges us to conclude that an Internet user can easily stumbl e upon sexually explicit material. (Defendant's Post-Hearing Memorandum of Law ("D efendant's Post-Hearing Memo"), filed May 28, 1996, at 31-32) It is important to begin with the 23 general observation that, with the exception of e-mail, no content appears on a user's screen without the user having first taken some affirmative step. One wishi ng to read articles posted to a newsgroup must connea tO a Usenet server ant selea the relevant group. To retrieve a file through anonymous PTP or access a gopher server, the user must search for or know the address of a particular server. To gain access to co ntent on the World Wide Web, a user must know the URL of a relevant site or type a keywo rd illtO one of several available search engines. Schmidt's demonstration focused mainly on the availability of sexually expl icit content on the World Wide Web. In the absence of any screening software or filter, a user determined to view a site containing sexually explicit material can certain ly do so, either by typing a known URL or by searching for key words. One sexually explicit sit e may, in turn, contain alinks" to other such sites. (Defendant's Exs. 13, 16, 17, 26 , 29, 32; Schmidt Test., Tr. at 40142) While ordinarily a user must affirmatively seek sexual ly explicit material to view it, on occasion a search not intended to retrieve sexually explicit material may retrieve a link to a sexually explicit site. For example, Schmidt's sea rches of aSleeping Beauty," "Babe," and "Little Women" produced a handful of links to sexually explicit sites. (Oefendant's Exs. 15, 18, 27, 31, 38) This demonstration revealed the inevi table imprecision of search engines-a broad search will almost always return some irrelevant results. In the vast majority of cases, the charaaer of a sexually explicit site will be clear from the entry or Link that a search engine returns. Nevertheless, there is potential for occasional accidental viewing of sexually explicit material. For example, i f a user were to view entries in a WebCrawler search using that program's standard format as preset by the 24 manufacturer, he would see no summary of the sites' contents. (Defendant's Ex. 18; Shirky Test., Tr. at 237-38) One of Schmidt's searches of "Sleeping Beauty" return ed an entry offering a lir~k to a site containing sexually explicit material; the entry (when viewed apart from other entries on the same page with similar addresses) gave little ind ication of the site's contents. ))efendant's Ex. 15; Shirky Test., Tr. at 238) It is diffi cult to know how often accidental viewing can occur, but there is no basis in the record for concluding that a user not seeking out sexually explicit material on ehe Ineerna will encount er it with any particular frequency. 2. 11,e Availab~lity of S0cually Explicit Content Although Schmidt's demonstration focused on the World Wide Web, sexually explicit content is available on the Internet through almost any form of In ternet communication. Yet there is no evidence that sexually explicit content cons titutes a substantial-or even significant-portion of available Internet content. Whil e it is difficult tO ascertain with any certainty how many sexually explicit sites are access ible ehrough the Internet, the president of a manufaaurer of software designed to block acce ss to sites containing sexually explicit material testified in the Philadelphia litigat ion that there are approximately 5,000 to 8,000 such sites, with the higher estimate refleaing the inclusion of muleiple pages (each with a unique URL) attached eo a single site. (Stipula ted Portions of Record in ACLU/ALA ("Stipulated Record"), Ex. M, at 139 40 ~estimony of Ann W. Duvall in ACLU/ALA)) The record also suggests that there are at least thirt y-seven million unique URLs. (Galligher Test. at 144) Accordingly, even if there were twice as many 25 unique pages on the Interna containing sexually explicit materials as this undisputed testimony suggests, the percentage of Internet addresses providing sexually explicit content would be well less than one tenth of one percent of such addresses. It is not disputed that some of the sexually explicit materials that the CD A attempts to keep away from minors originates abroad. This is not surprising inasmuch as forty percent of all host computers are located outside the tJnited States. Joint Stip. 13) Although only a tentative approximation is possible, the record suggests th at as much as thirty percent of the sexually explicit material currently available on the Internet originates in foreign countries. (Stipulated Record, Ex. L, 141; id. Ex. M, at 161-62 (Duvall Test.)) D. The Development of Blocking Tools and Laloeling Schemes As the Internet has become accessible to more households, several commercia l on-line services and software companies have developed features and package s designed to enable parents to limit children's exposure to potentially inappropriate In ternet material. For example, America Online, Prodigy, and Microsoft Network, which permit t heir subscribers to obtain access to Internet material, offer parental control o ptions free of charge to their members. Joint Stip. 167) America Online, for example, allo ws parents to establish a separate account for their children limited to the service's own proprietary content. (Id.) In addition, at least one type of screening software, SurfWa tch, has a feature allowing parents to block access to all Internet sites except for those tha t parents choose to make available to their children (Stipulated Record, Ex. M, at 131 (Duvall Test.)) 26 The Governtnent offered testimony and a demonstration regarding SurfWatch (configured to act as a screening tool, rather than to block all Interna ac cess) and a second type of screening software, Cyber Patrol. SurfWatch and Cyber Patrol mainta in lists of sites known to contain sexually explicit material; when operating while a u ser attempts to retrieve Internet material, access to sites identified on their programs wi ll be blocked. In addition, the programs block access to sites whose URLs contain particular character patterns or words, such as "xxx" or "sex," and block any searches including those character patterns or words. Because of the constant change in the number and location of Internet sites , both SurfWatch and Cyber Patrol offer regular subscription or update services. B ut even where a parent has properly installed screening software and the software is oper ational (and configured to block access tO certain sites rather than to the entire Inter net), it is possible to retrieve some sexually explicit material. The Government's witness was a ble to run searches using "Babe" and "Little Women" as key words with screening softwa re running in the background. As with searches performed in the absence of screening s oftware, the searches returned links to sexually explicit materials. Some of the links w ere not blocked by the screening tool. In addition, the Government's witness obtained acces s to sexually explicit material by direaly entering URLs obtained from earlier searches c onduaed without blocking software in the background. The record also shows that blo cking software is noe widely owned by or used in households with access to the In ternet: nearly seventy percent of SurfWatch's 1,500 subscribers are schools rather than in dividual households. (Id. at 163-65) 27 Other efforts to assist parents in filtering and screening material that th eir children can view on the Internet are under way. The World Wide Web Consortium ("W3C ") has launched the Platform for Internet Content Selection ("PICS") to develop te chnical standards for attaching electronic ratings to Internet addresses. Joint Sti p. 1147-49; Stipulated Record, Ex. J., at l; id. Ex. G, at 2-3 ~eclaration of Albert Ve zza in ACLU/ALA)) When the system is fully implemented, PICS-compatible client sof tware (including browsers, newsgroup readers, and mail readers); Intcrnet service providers; and commercial on-line services will be able to detect PICS tags and block cont ent based on how a parent has configured the software. Joint Stip. 148; Stipulated Recor d, E2c. G., at 3 (Vezza Decl.)) PICS will thus enable parents to design from an array of cat egories blocking criteria that suit the parents' values or needs. The PICS program envisages both rating by content providers and rating by third parties. Ooint Stip. 148) The vast ma jority of Internet sites currently remain unrated. Nevertheless, Microsystems Softwar e, Inc.- (which manufactures Cyber Patrol) introduced a PICS ratings server in February 199 6. (Id 154) Cyber Patrol is itself now PICS-compatible; it can screen out material base d on its PICS tag. (Id.) In addition, Microsoft released the first PICS-compatible Web br owser, Internet Explorer 3.0, on May 28, 1996. The browser allows parents to block children 's access to all unrated Internet sites and to specify appropriate levels of violence or nudity at rated sites. (Hoffm~n Supp. Decl., Ex. C, at 1-3) In addition to PICS tags, the Government's expert witness, Dr. Dan Olsen, t estified that content providers wishing to transmit or make available material poten tially falling within the scope of the CDA could develop a general przaice of inserting a "tag" or 28 "label"-a string of characters, such as "-Ll8" (for "not less than 18 years ")-into the address or name of a particular site so as to clearly identify the site as unsuitab le for minors. To transmit or gain access to Internet content, a user must specify a textual name: one cannot send e-mail without an e-mail address or the name of a mailing list; post a n article to a newsgroup without specifying the name of the group; participate in the Inte rnet Relay Chat without specifying a "channel"; or access a file without its address. (Olsen Decl. 11 22-26) Accordingly, content providers using all significant modes of Intern et communication could use a tag to identify their content as "covered" conten t. For example, when a sender transmits an e-mail message, the message is accompan ied by the sender s address, which contains a "user name" identifying a particular use r and a "domain name" assigned to a computer or set of computers.'" (Olsen Decl. 1125, 60) If the string -Ll8 were added tO the domain name, all e-mail originating from that site-r egardless of the particular user who transmitted it-would be identified as containing materi al falling within the scope of the CDA.'2 In the alternative, a particular user name-rather t han a domain name-could contain the "-Ll8" tag; only e-mail originating under that user name would be tagged.'3 Finally, a tag could be placed in a textual subject line, so as t o identify only particular messages (rather than all e-mail sent under a certain user name or from a certain computer) as containing content potentially within the scope of the CDA. (I d 116~62) ''In the example jdoe~smith.com, "smith.com" would constitute a domain name . '2Following the example above, all e-mail would originate from the domain qmith T 1R com '3In the example above, material would originate from the address jdoe-Ll8@smith.com. 29 Similarly, a tag such as "-L18" could be added to the name of a newsgrOup; an individual user wishing to post an article potentially falling within the s cope of the CDA to a newsgroup that does not as a general matter contain such material coul d insert a tag in the subject line accompanying the article. (Id 1164-65) A tag could also be placed in the name of an IRC channel. Turning to means of making files available for retrieval or viewing by remo te users-using an FTP, gopher, or Web serYer content providers could insert a specific tag such as "-Ll8" in a domain name or site name. Thus, as the Government's exp ert witness testified, an owner of a Web site named awww.cyberporn.com" could rename th e site "www-L18.cyberporn.com". (Id 1 5l) If a site only contained specific files falling within the scope of the CDA, a content provider could identify those files by addi ng a tag to the name of the directory in which the file resides or to the file name itself. That is, a file identified with the address "http://www.adult.com/picturel.html/" could be renamed "http://www.adult.com/picturel-Ll8.html/n; in the alternative, a content pr ovider could place all covered files within a specific directory, such as ahttp://www.adult.com/pictures-Ll8/." (Id 1151-54) A content provider who d id not wish to tag an entire file available on a Web server as unsuitable for mino rs could place a tag within the HTML source code of the file, thus identifying a particular section as subject to the CDA. (H 158) In any of these approaches, tagging content is, in a te chnical sense, a trivial act. (Id. 1159, 62; Stipulated Record, Ex. B, at 56 ~estimony of Scott 0. Bradner in ACLU/ALA)) 30 There is an alternative means to shield minors from sexually explicit conte nt available uniquely tO content providers on the World Wide Web: verification of a user's "adulthood" before allowing him access to a site. A content provider operat ing a Web server can create and display an electronic form to retrieve information fr om a user visiting the Web site; after processing the information by using a program such as a Common Gateway Interface ("cgi") script, the server could grant or deny access to the site. (Shirley OecL 121) Not all content providers who make material available on the 55Ve b, however, can use programs such as cgi scripts; for example, commercial on-line servi ces such as America Online and CompuServe provide subscribers with the opportunity to p ost content by configuring their own Web pages but do not permit subscribers to use cgi scripts. (Olsen Test., Tr. at 345) For Web content providers who lack access to cgi scripts, there is no means of age verification. Although some Web providers can query the user of a site for a credit card number, the cost of verification is significant, ranging from sixty cents per trans action to more than a dollar per transaction. (Id at 34142) To take advantage of adult access c ode or adult identification code verification, a content provider would either have to e stablish and maintain a registration and verification system (or hire someone else to do so) and issue access codes to users after verifying their ages-or associate with one of s everal adult verification services, such as Adult Check, Adult Verification System, Firs t Virtual, Validate, or VeriSign. (Olsen Decl. 186 & Ex. I; Schmidt Test., Tr. at 203- 14; Defendant's Exs. 6, 7, 8 & 9) Although neither of the Government's expert witnesses had any first- hand familiarity with adult verification services, advertising materials su ggest that an adult 31 can obtain an identification number from a particular service and access an y site registered with the senrice. For example, a user can register with Adult Check for an annual fee of S9.95; when the user attempts to access any site registered with Aduk Check , the user is prompted to enter an Adult Check identification number that is checked agai nst the service's database. ~efendant's Ex. 6, at 1) If the number is valid, the us er is automatically admitted to the site. (Id) Although most verfication services do not charge content providers to register their sites (Id. Exs. 6-8), at least one serv ice does impose a [ee on site owners registered with it. (Id. Ex. 9, at 1) Having explored various means of Internet communication, the availability a nd accessibility of sexually explicit content, the development of blocking sof tware and rating schemes designed to enable parents to shield their children from inappropri ate material, and the potential for tagging and verification procedures that content prov iders can themselves employ in an effort to shield minors from sexually explicit cont ent that they provide, we turn to the governmental regulation in question. III. DISCUSSION 47 U.S.C. S 223(d), as added by the CDA, targets persons who send or displa y material that, "in context, depicts or describes, in terms patently offensi ve as measured by contemporary community standards, sexual or excretory activities or organs. " The language of S 223(d) parallels the definition of "indecency" adopted by the FCC in 1975 in 32 the broadcast context,'4 see FCC u Pacifica Found., 56 F.C.C.2d 94, 98 (197 5); an application of this def~nition to a radio broadcast of the deliberately pro vocative George Carlin "Filthy Words" monologue was upheld by the Supreme Court in FCC v. P acifica Found., 438 U.S. 726, 751 (1978). Following Pacif ca, the FCC applied the i ndecency standard only narrowly-taking no enforcement action unless material "involv ed the repeated use, for shock value, of words similar or identical to those satir ized in the Carlin . . . monologue"-with the result that no broadcasts were found actio nable between 1975 and 1987. Action for Children's Television v. FCC (=ACT I"), 852 F.2d 1332, 1338, 1336 (D.C. Cir. 1988) (quotation marks omitted). In 1987, however, the FCC, in three rulings in the broadcast context, interpreted its indecency standard more broadly, extending it beyond the particular language at issue in Pacifica. See Infinity Broadc asting Corp., 2 F.C.C.R. 2705 (1987); Regents of the University of Californ~a, 2 F.C.C.R. 2 703 (1987); '4The FCC's definition of "indecency" in turn has its roots in the Supreme Court's obscenity jurisprudence. Under Miller u California, 413 U.S. 15, 24 (1973), a work is legally obscene if it "portray[s] sexual conduct in a patently offensive wa y. and, taken as a whole, "appeal[s] to the prurient interest in sex" and lacks "serious liter ary, artistic, political, or scientific value." Under the FCC's indecency definition, a wo rk need not appeal to the prurient interest or lack serious value to be "indecent." See Denver Area Consortium, 1996 ~L 354027, at *16 (plurality opinion). We note that ~ 223( d) contains no reference to "indecent. spfflh, but merely imports the FCC's definition of indecency to define covered speech. Section 223(a)(1)(B) of the CDA, not challenged by t he plaintiff in this litigation, uses the term "indecent." Like the parties in this case, w e use the terms "indecent" and "patently offensive" interchangeably. The three judges in th e Philadelphia litigation accepted, for purpose of adjudication of the plaintiff's motion for preliminary injunctive relief, that ~ 223(a)(1)(B) and ~ 223(d) cover the same content, despite Congress's use of the term "indecent" in one provision and the "patently offensive" de scription in the other. See ACLU/ALA, 1996 WL 311865, at *28 (Sloviter, C.J.), *40 (Buckwalt er, J.), *48 ~)alzell, J.). 33 Pacifica Fos~nd., Inc., 2 F.C.C.R. 2698 (1987).~5 The same standard was imp orted, by statute and by regulation, into other conte%s, and applies to commercial te lephone messages, see Dial Info. Serus. Corp. v. Thotnburgh, 938 F.2d 1535, 1540 41 (2d Cir. 1991) (quoting Regulations Concerning Indecent Communisations by Telephone, 5 F.C .C.R. 4926, 4927 (1990)), cert. denied, 502 U.S. 1072 (1992), and cable programmi ng, see 47 U.S.C. 532(h); 47 C.F.R. SS76.701(~), 76.702 (1995); Alliance for Communi~y Media u FCC ("AIliance"), 56 F.3d 105, 129 (D.C. Cir. 1995) (in bane), affd in part and rev 'd in part sub nom. Denver Area Consortium, 1996 WL 354027 (U.S. June 28, 1996). The plaintiff claims principally that ~ 223(d), as added by the CDA, is unconstitutional on its face because it is vague and substantially overbroa d. Where a plaintiff seeks to "stay government action taken in the public interest pur suant to a statutory or regulatory scheme," he must demonstrate a likelihood of succes s on the merits of his claims and that he will suffer irreparable harm in the absence of an injunction. Able u United States, 44 F.3d 128, 131 (2d Cir. 1995) (per curiam) (internal quo tation marks omitted). It is well settled that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod u Bu rns, 427 U.S. 347, 373 (1976) (plurality opinion). Accordingly, a finding of irreparable harm flows from a court's conclusion that a governmental regulation has a chilling effect o n free expression. We examine the plaintiff's vagueness and overbreadth challenges in turn. '5In reviewing these rulings, the U.S. Court of Appeals for the D.C. Circui t approved of the more expansive interpretation of the indecency standard, see ACI I, 852 F.2d at 133840, but vacated Regents of the University of California and Pacifica Fo undation, Inc. on other grounds, see id. at 1341. 34 A. Vagueness We consider first the plaintiff's claim that ~ 223(d) is unconstitutionally vague_that it fails to convey to persons of ordinary intelligence reasonable notice of what condua is prohibited and creates a danger of arbitrary and discriminatory enforcement . See Gr~yned u city of Rockford, 408 U.S. 104, 108-09 (1972). Where a federal statute or regulation fails to supply a fair warning of what will give rise to crim~nal liability, it v iolates the Due Process Clause of the Fifth Amendment; where a statute or regulation purpor ts to limit freedom of expression, its vagueness will also "operate[1 to inhibit the ex ercise" of that freedom and violate the First Amendment. Id. (internal quotation marks omit ted). As previously noted, ~ 223(d) essentially codifies the FCC definition of in decency sustained in a particular faaual context by the Supreme Court in Pacif ca. Although the Pacifica Court never specifically addressed whether the FCC's definition wa s unconstitutionally vague, the Court's conclusion that the broadcast at issu e in Pacifica was "indecent" and the faa that the Court quoted elements of the FCC's indecen cy definition with approval, see 438 U.S. at 739, has been read to foreclose a vagueness challenge to the FCC's definition for indecency in the broadcast medium. See ACTI, 852 F.2d at 133940 (~[Ilf acceptance of the FCC's generic def~nition of 'indecent' as capable of surviving a vagueness challenge is not implicit in Pacifica, we have misunderstood High er Authority and welcome correaion."); see also Action for Children's Television v. FCC, 932 F.2d 1504, 1508 `(D.C. Cir. 1991) (-A CTIP), cert. denied sub nom. Children's Legal Fo und. u Action for Children's Television, 503 U.S. 913 (1992); Action for Children's Televisio n u FCC, 58 F.3d 654, 659 (O.C. Cir. 1995) (in bane) ("A CTIII"), cert. denied su/o nom. Pac ifica Found u 35 FCC, 116 S.Ct. 701 (1996). Relying on the reasoning of Pacifica and ACT I, the courts of appeals have found vagueness challenges to analogous FCC definitions reachi ng commercial telephone communications and cable programming unavailing. See Dial Info. S erus., 938 F.2d at 1540-41 (indecent commercial telephone messages); I'2forrrzation Pr oviders' Coalition for the Defense of the First Amendment u FCC, 928 F.2d 866, 874-76 (9th Cir . 1991) (same); Alliance, 56 F.3d at 129 (cable programmin~). Most recenely, the Alliance c ourt's approach cn this question was affirmed by a plurality of the Supreme Court. Denver A rea Consortium, 1996 WL 354027, at 416-~17. In light of Supreme Court and other precedent rejecting claims that the lan guage used by the FCC to define indecency is unconstitutionally vague, we cannot conclude that the plaintiff has demonstrated a likelihood of success on his claim that th e incorporation of a virtually identical verbal formula into ~ 223(d) renders that statute fat ally vague. The plaintiff appears to concede that a challenge based solely on the "patently offensive" language is foreclosed, but calls our attention to other purported defects in the statutory language. First, the plaintiff contends that assessment of a work's "contex t" in determining whether it is "patently offensive" is highly unprediaable and subjeaive. (P laintiff's Memorandum of Law, filed Feb. 17, 1996, at 23) Second, S 223(d) requires co ntent providers to judge what content will and will not subjea them to criminal l iability by reference to the "standards. of an unidentified or fiaitious "community." ( I?laintiff's Post- Hearing Memorandum of Law ("Plaintiff's Post-Hearing Memo"), filed May 21, 1996, at 37) We conclude that neither argument supports a conclusion that ~ 223(d) is 36 unconstitutionally vague. In addition, we address briefly the basis for our disagreement with the contrary conclusion reached by two of the judges in the Philadelph ia litigation. We first address the inclusion in ~ 223(d) of the phrase "in context." Whil e the FCC definition that has been applied to television broadcasting since 1987- the subject of unsuccessful vagueness challenges-has included this phrase, see Infinity Br oadcasting Grp., 2 F.C.C.R. at 2705, definitions emplayed by the FCC with respect to other m edia have not explicitly included this phrase. See Dial Info~ Serus., 938 F.2d at 1540 (i ndecent commercial telephone messages); Infor~nation Providers' Coalition, 928 F.2d at 869 (sa me); Alliance, 56 F.3d at 105 (cable programming). Nevertheless, an assessment of a work's co ntext has always been a component of indecency analysis regardless of the medium; the incorporation of the phrase "in context" merely follows the approach of Pac ifica and later cases. See Pacifica, 438 U.S. at 744 (plurality opinion); id. at 750 (major ity opinion); Info~mation Providers' Coalition, 928 F.2d at 876; ci ACTI, 852 F.2d at 134 0 (discussing relevance of social value of material as factor in determining whether mate rial is patently offensive); S. CONG. REP. 230, 104th Cong., 2d Sess. 189 ("The gravamen of the indecency concept is 'patent offensiveness.' Such a determination cannot be made with out a consideration of the context of the description or depiction at issue."). W e cannot see how importing certain language that has been used by various courts considering challenges to the definition of indecency renders the CDA unconstitutionally vague. The plaintiff's second point concerns the ability (or inability) of an Inte rnet content provider to assess what "community standards" govern the transmission or di splay of patently offensive materials. A communication posted by an individual in Ne w York City 37 to a Usenet server and thereby made available to countless subscribers arou nd the world might indisputably fall outside the scope of what is "indecent" by the sta ndards of New York City, but might subjea the individual to criminal prosecution in other federal distrias. Nevertheless, in light of the faa that modern communications have long transcended community borders, this problem is not a novel one. Indeed, the definition of obscenity requires a publisher or distributor of arguably obscene material to look to contemporary community standards in various localities into which materials are distributed. See, e.g., Sable Communications, 492 U.S. at 125-26 (concludin g that failure to apply uniform national standard of obscenity does not render statute uncons titutional; "If [the provider's] audience is comprised of different communities with differ ent local standards, [the provider] ultimately bears the burden of complying with the prohibition on obscene messages."); see also Miller, 413 U.S. at 24 (holding that faafinde r's inquiry in obscenity context focuses in part on whether "the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest" (internal quotation marks omitted)). The plaintiff attempts tO distinguish past cases rejeaing vagueness challen ges to indecency definitions incorporating "community standards" language on two g rounds. First, the plaintiff contends that Internet content providers are less well equipped to assess community indecency standards than those within the reach of previous statu tes and regulations governing indecency; while entities engaging in the commercial traffic of pornographic materials (such as obscene or indecent telephone messages) may have legal staff to monitor FCC pronouncements on what is and is not patently offensiv e in 38 communities across America, we are told, individuals engaged in an exchange of ideas over the Interna do not. (Oral Argument, June 3,1996, Tr. at 2~25) Second, the p laintiff claims that even if those who use other communications media can tailor the ir messages to a particular community-as suggested by the Supreme Court in Sable Communications-Internet content providers simply cannot restrict the geogra phic area within which their messages are received. (I?laintiff's Post-Hearing Memo. at 39) We are not persuaded. The plaint;E has offered no authority for the proposi tion that, so long as the providers of content targeted by a statute are private individuals, Congress cannot constitutionally link proscribed conduct to the community s tandards of various localities. While it is true that congressional action has directly targeted commercial dial-a-porn services, and restrictions on indecency in radio and television broadcasting or cable programming mainly affect for-profit enterprises, liability for viola tion of indecency restrictions has not been tied to the ability of a content provider to mars hal its resources to explore various community indecency standards. Distributors of allegedly ob scene materials may also be subjected to varying community standards; we know of no exemption for individuals whose primary motive is non-economic. Due process requires that a criminal statute ~give the person of ordinary intelligence a reasona ble opportunity to know what is prohibited, so that he may act accordingly," Grayned, 408 U.S. at 108; it does not require "mathematical certainty," id at 110, or "'impossible stand ards' of clarity," Kolendir u LAn~on, 461 U.S.352, 361 (1983) (quoting United States u Petrill o, 332 U.S.1, 7-8 (1947)). We have no basis for concluding that Internet content provider s are any less capable than those subject to obscenity laws or other indecency restriction s to acquire a 39 general familiarity with the relevant standards; indeed, one might conclude that a content provider's contact with others around the country and around the world thro ugh interzaive computer services would cultivate a heightened awareness of regi onal and cultural differences. We turn to the plaintiff's claim that, even assuming a content provider can discern the appropriate community standards, the provider has no choice but to gear his message toward the least tolerant cornmunitY. More specifically, unlike a provider of obscene or indecent telephone communications or cable programming, who might be able t o prevent a message from being transmitted to certain geographical areas, an Internet c ontent provider has no way of identifying the receiving community. It follows that, to comp ly with the CDA, a content provider must take steps to limit minors' access to all mate rial that would be considered patently offensive in any community; only then could the cont ent provider be sure that matenal considered inappropriate under the standards of a part icular community is not available to minors in that community. The problem that the plaintiff presents appears to raise questions of over breadth rather than vagueness. In light of our other conclusions infra and in the a bsence of even a preliminary showing in this record by either party regarding distinaions in community standarts, we tecline to address whether any overbreadth in this respect is "substantial." As notes, two of the judges in the Philadelphia litigation concluded that t he provision of the CDA challenget by the plaintiff is unconstitutionally vagu e. That conclusion rests in part on the fact that the indecency definitions upheld in past cases defined indecency by reference to community standarts for a particular medi um. For 40 example, the FCC definition of indecency upheld in Dial Info. Servs., 938 P .2d at 1540, contained a reference to what is patently offensive as measured by contempo rary community standards "for the telephone medium." See ACLU/ALA, 1996 WL 31186 5, at 442 (Buckwalter, J.). We can find no authority discussing the significance of the definition's reference to the telephone medium or of analogous references t O the broadcast or cable media.'6 Particularly in light of the fact that no court addressin g an indecency challenge has focused on any of these references, it is unclear how Pacsfic a and itS progeny can be thought to require its existence, or how the absence of a reference to the particular communications medium targeted by the CDA renders the statute unconstitutio nally vague. Finally, we address the slightly different argument raised by the same two judges in the Philadelphia litigation-that the CDA is vague not only because it fails to provide the requisite guidance to those seeking to avoid criminal liability, but also b ecause it leaves open the possibility of arbitrary enforcement. This conclusion stems in par t from the Government's apparent representation in that case that the challenged provi sions of the CDA will be applied only to "pornographic" material. We note that the Gover nment has made no such representation here, and clearly contemplates the application of the CDA to material that is patently offensive although not necessarily pornographic. While we are properly required to approach the question of whether a criminal statute is vague with '6Indeed, the statutory definition of indecency for the cable medium, found not to be vague by a plurality of the Court in Denver Area Consortium, makes no refer ence to the community standards for the cable medium. 1996 WL 354027, at *16. Compare 4 7 U.S.C 532(h) (lacking reference to standards for cable medium) with 47 C.F.R. ~ 7 6.701(g) (including reference to standards for cable medium). 41 great skepticism that prosecutorial good faith can cure an identified defea , see Baggat v. Bullitt, 377 U.S. 360, 373-74 (1964) ("Well-intentioned prosecutors and jud icial safeguards do not neutralize the vice of a vague law.~), we are constrained to conclude t hat this statute is not vague, and does not leave in the hands of prosecutors the sole discreti on to delineate its contours. Congress did not fashion the "patently offensive" provision of ~ 223(d) out of whole cloth. To the extert that the FCC and courts have, in construing simi larly worded indecency provisicns against the backdrop of the First Amendment, previousl y drawn distinaions between serious discussions of sexual issues and material in wh ich sexuality is portrayed in a purposefully offensive manner, Congress's choice of language in  223(d) cabins prosecutorial discretion by incorporating FCC and court rulings refl eaing those distinaions. Compare Later to Mr. Peter Branton, 6 F.C.C.R. 610 (1991) (dis missing indecency complaint regarding radio news story including broadcast of wiret ap in which John Gotti repeatedly used an expletive; concluding that "the program segme nt, when considered in context, was an integral part of a bona f~de news story conce rning organized crime"); ln re King Broadcasting Co., 5 F.C.C.R. 2971 (1990) (dismissing in decency complaint regarding broadcast of program "Teen Sex, What About tbe Kids'"; concluding that "[a]lthough the program dealt with sexual issues, the matenal presente d was clinical or instruaional in nature and not presented in a pandering, titillating or vul gar manner or in any way that we would consider patently offensive"), with In re Sagittanus Broadcasting Co~p., 7 F.C.C.R. at 6874 (upholding finding of indecency with respect to b roadcast making "frequent, explicit, patently offensive references to sexual interco urse, orgasm, masturbation, and other sexual condua, as well as to breasts, nudity, and m ale and female 42 genitalia.). Enforcement of S 223(d) does not depend upon prosecutorial whi m, but upon prosecutorial fidelity to distinaions that Congress sought, through codif~c ation of a definition of indecency that has been authoritatively construed for a varie ty of media in recent years, to incorporate into the CDA. See S. CONF. REP. 230, 104th Con g., 2d Sess. 189 (1996). In sum, we conclude that ~ 223(d) is not unconstitutionally vague. B. Substantial Overbreadth The plaintiff also claims that ~ 223(d) is substantially overbroad and ther efore facially invalid. The doarine of overbreadth recognizes that an unconstitut ional restriction of freedom of expression may deter parties not before the court from engagi ng in proteaed speech and thereby escape judicial review. See Broadrick v. Oklahoma, 413 U .S. 601, 612-13 (1973); Gooding v. Wilson, 405 U.S. 518, 520-21 (1972). Accordingly, an ove rbreadth challenge can be raised "with no requirement that the person making the att ack demonstrate that his own condua could not be regulated by a statute drawn w ith the requisite specificity." Dombrowski u Pfister, 380 U.S. 479, 486 (1965). Tha t is, even if a statute could be validly applied to the plaintiff and others, it may be so broad as to inhibit the constitutionally proteaed speech of third parties not before the Court. Invalidation of a statute on overbreadth grounds is "strong medicine," and is inappropriate unless the overbreadth is substantial and no limiting construaion could be placed upon the challenged statute. Broadrick, 413 U.S. at 613, 615; see also Forsyth County u Nationa list Movement, SOS U.S. 123, 130 (1992) (noting that Court has permitted overbreadth challenge s "where [a 43 statute] sweeps too broadly, penalizing a substantial amount of speech that is constitutionally proteaed"); New York State Club Ass'n u City of New York, 487 U.S. 1, 11, 14 (1988) (noting that an overbreadth challenge is justified only if "a sub stantial number of instances exist in which [the statute] cannot be applied constitutionally") ; City of Houston u Hill, 482 U.S. 451, 458 (1987) (~[In an overbreadth challenge], a court's first task is to cletermine whether the enaament reaches a substantial amount of constitutio nally proteaed condua." (internal quotation marks omitted)); Members of the City Gunsel u Taxpayers for Vincent, 466 U.S. 789, 801 (1984) (noting that an overbreadth challenge will succeed only if there is "a realistic danger that the statute itself will s ignif~cantly compromise recognized First Amendment proteaions of parties not before the Court"). Applying these principles, we must determine whether S 223(d) unconstitutio nally restrias freedom of expression, and, if so, whether the statute criminalize s a category of proteaed speech that is substantial in relation to the category that could legitimately be proscribed. Seaion 223(d) constitutes a content-based regulation of speech; in most contexts, such a regulation would be subjea to the striaest judicial scruti ny and therefore would be impermissible absent a showing that the regulation is supported by a compelling interest and is narrowly tailored to achieve that interest. See Sable Commu nications, 492 U.S. at 126. At oral argument, the Government's counsel conceded that stria scrutiny analysis is appropriate for purposes of this Court's adjudication of the pl aintiff's motion for preliminary injunaivc relief; nonetheless, we pause to consider this questi on in greater detail in light of the Supreme Court's recent decision in Denver Area Conso rtium, 1996 WL 354027. There a plurality of the Court assessed the constitutionality of st atutory provisions (1) granting cable operators the power to prohibit indecent comm unicatiOns on "leased access channels"-ie., channels reserved under federal law for comme rcial lease by unaffiliated third parties; (2) requiring cable operators to segregate and block indecent programming if they decide to permit, rather than to prohibit, its broadcas t; and (3) granting cable operators the power to prohibit indecent programming on "pub lic access channels"-i.e., channels reserved under local franchise agreements for publ ic, educational, or goverr~mental purposes. Id. at *5-*6. Recognizing that the Court's First A~nendment jurisprudence involved application of principles tailored to different comm unications media, the plurality expressly declined to adopt a definitive standard for evaluating content- based regulation in the cable medium to apply in all future circumstances. Id at *10. Accordingly, the plurality did not evaluate the restrictions on indecent ca ble broadcasts under a standard of "stria scrutiny," but rather assessed whether the restr iaions "properly addresse[d] an extremely important problem, without imposing, in light of t he relevant interests, an unnecessarily great restriction on speech." Id. at *11. As the Denver Ana Consortium plurality itself recognized, there was little difference between the standard it applied and the stria scrutiny approach that Justic e Kennedy endorsed in his partial concurrence. See id at *13. We have no doubt, howev er, that stria scrutiny should apply here. The plurality's decision not to expressly apply stria scrutiny in Denver Area Consortium depended in part on the likelihood that children would be exposed to indecent cable programming; reasoning that, like broadcast tele vision or radio, cable television is "uniquely pervasive" in homes and highly accessible to children and that patently offensive material confronts the viewer "with little or no prior w arning," the 45 plurality reasoned hbat Pacifica's consideration of a limitation on indecen t broadcasting was persuasive. Id. at *12 (internal quotation marks omitted). The plurality di stinguished Sable Gmmunications in part because it "involved a communications medium, telepho ne sermce, that was significantly less likely to expose children to [indecent] materia l, was less intrusive, and allowed for significantly more control over what comes into the home." Id at *14. As our findings of faa make clear, it takes several affirmative steps for a user to gain access to material through an interzaive communications service. Indecent content on the Internet ordinarily does not assault a user without warning: a child cannot gain access to Internet content with the touch of a remote control, and while accidental v iewing of indecent content is possible, there is no evidence in this record to sugges t that it is likely. Accordingly, we find stria scrutiny appropriate here. In charging that S 223(d) unconstitutionally restrias protected expression, the plaintiff pursues two distina arguments. First, the plaintiff contends that S 223(d) reaches a significant amount of Internet content with serious literary, artistic, p olitical, or scientific value, and that the government cannot demonstrate any compelling interest i n restriaing the availability of such material on the Internet. Second, the plaintiff cl aims that ~ 223(d) (considered together with certain affirmative defenses to criminal liabilit y set forth in ~ 223(e)(5)) is not narrowly tailored, in that it fails to preserve for adu lts the ability to engage in certain constitutionally proteaed communications-effeaively aaing as a total ban on indecent communications by interactive computer systems. We find it necessary to address only the second of these claims. Entirely independently of the question of whether matter of serious value is chilled by the CDA, 46 the statute constitutes an overly broad restraint on proteaed communication baween and among adults. Of course, the statute would be even more constitutionally de feaive if it encompassed work of serious value that the government has no compelling int erest in regulating. In light of our finding on the plaintiff's second overbreadth c laim, however, it is unnecessary to resolve the cluestion of whether he has demonstrated a li kelihood of success on his claim that the COA would proscnbe a substantial body of work that is of serious value but that is not harmful to minors and therefore not in the go vernment's compelling interest to regulate. Broadnck, 413 U.S. at 615. It is also unnecessary, given our holding on the plaintiff's second overbre adth claim, to decide whether the potential ineffeaiveness of the CDA in eradicating th e problem of minors' having access to sexually explicit material on the Interna renders the statute constitutionally defeaive. Because the CDA only regulates content providers within the United States, while perhaps as much as thirty percent of the sexually expl icit material on the Internet originates abroad, see supra p. 26, the CDA will not reach a s ignificant percentage of the sexually explicit material currently available. Consideri ng, as we hold below with respea to the plaintiff's second overbreadth claim, that the CDA can be expeaed to chill the Pirst Amendment rights of adults to engage in the kind of expression that is subjea to the CDA's criminal penalties, the apparent ineffectivenes s of the CDA underscores our holding today that the Government has failed to demonstrate that the CDA does not "unnecessarily interfer[e] with Pirst Amendment freedoms." Sab le Communications, 492 U.S. at 126 (internal quotation marks omitted). Even if it were established that the statute is to some limited extent effective in protect ing minors from 47 sexually explicit material on line, and that nothing short of a total ban o n indecent communication could be as effective, it is not obvious that the benefits th us achieved would outweigh the burden, described below, imposed on the Pirst Amendment rights of adults. As our Court of Appeals has repeatedly stated, "[Tlhe State may not regulate at all if it turns out that even the least restrictive means of regulation is stil l unreasonable when its limitations on freedom of speech are balanced against the benefits gain ed from those limitations." Carlin Gmmunications, Inc. u [CC, 837 F.2d 546, 555 (2d Cir.) (internal quotation marks omitted), cert. denied, 488 U.S. 924 (1988). We turn now to the plaintiff's second overbreadth claim, analytically disti nct from the first, that the CDA aas as a ban on certain constitutionally protected communications between adults. Por purposes of our discussion of this claim, we will assum e that the government has a compelling interest in restricting minors' access to all ( or virtually all) apatently offensive" material-that is, that all such material is found to b e harmful to minors. The question is whether the challenged provision of the CDA is a "n arrowly drawn regulations designed to serve [the government's] interestO without un necessarily interfering with Pirst Amendment freedoms." Sable Communications, 492 U.S. at 126 (internal quotation marks omitted). The plaintiff claims that the statute f ails to safeguard for adults the means of engaging in constitutionally proteaed communication s through interaaive computer services. The Government concedes that  223(d), standing alone, is not constitutiona lly defensible. (Oral Argument, June 3, 1996, Tr. at 69-71) As discussed in gre ater detail in our faaual findings, and as the Government concedes, for the vast majority of applications 48 and services available on the Internet, a user has no way of communicating or making available patently offensive content with certainty that the content will n ot reach a person under eighteen years of age. (See Pindings of Fact, supra; Oral Argument, J une 3, 1996, Tr. at 69) For example, an individual sending a message that will be retran smitted by a mail exploder program has no way of knowing the identity of other subscribe rs (even if he knows the e-mail address of each subscriber). A content provider has no way of knowing who will have access to an article posted to a Usenet newsgroup. Individual participants in an Internet Relay Chat discussion know other participants only by the names they choose upon entering the discussion; users can participate anonymously by using a pseudonym. A content provider who makes files available on an anonymous PTP or on a goph er or Web server has no way of knowing the identity of other participants who will ha ve access to those servers. Because content providers using most forms of Internet communication have n o way of transmitting indecent content with certainty that it will not reach a minor, the only way for a content provider to comply with ~ 223(d), standing alone, wo uld be to refrain from transmitting any indecent content. Because adults would lack m eans of engaging in constitutionally protected indecent communications over the Int ernet without fear of criminal liability, the statute would unquestionably be unconstitut ional. See Sable, 492 U.S. at 131 (holding that total ban on commercial indecent telephone me ssages "has the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear"). 49 Section 223(d), however, does not stand alone. In S 223(e)(5), Congress sup plied two affirmative defenses to liability under the CDA. Pirst, S 223(e)(5)(A) provides that it is a defense to a prosecution under ~ 223(d) that a person "has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to r estrict or prevent access by minors to [covered] communication[s], which may involve any appro priate measures to restrict minors from such communications, including any method which is feasible under available technology." Second, ~ 223(e)(5)(B) provides that it is a defense to a prosecution under ~ 223(d) that a person "has restricted access to [covered ] communication[s] by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number." Accordingly, our inquiry is whether the statutory defenses adequately ensure that would-be speakers can use the Int ernet to transmit constitutionally protected communications to adults. The Government concede s that it bears the burden of proving that S 223(d), taken together with the statutor y defenses, preserves the ability of adult Internet speakers to engage in constitutiona lly protected indecent communications (Oral Argument, June 3, 1996, Tr. at 28-29), see R~ . ~ u City of St. Paul, 505 U.S. 377, 382 (1992) (noting that content-based regulations a re presumptively invalid); only if adults can engage in such communications can the court co nclude that the relevant provisions of the CDA are narrowly tailored to achieve the governm ent's interest in restricting minors' access to indecent material. We examine the ~ 223(e) (5) defenses in reverse order. 50 1.Verified Credit Card, Debit Account, Aduk Access Code, or Adult Identification Number The Government does not claim thee ~ 223(e)(5)(B) serves as a defense for c ontent providers using all or even most forms of on-iine communication. If a conte nt provider cannot discern who receives his messages, there is no way for him to obtain verification of recipients' ages. As previously noted, a speaker posting a message to a new sgroup vr to a list maintained by a mail exploder has no control over who will receive the message; a user who joins an IRC discussion channel cannot determine the identity of other participants, beyond viewing a list of names. Because speakers wishing to use these forms of communication have no way of identifying the recipients of their messages, they simply cannot seek to obtain any credit card or access code verification of a reci pient's age. Similarly, credit card or adult access verification is not available as a d efense to content providers who maintain FTP servers and wish to permit "anonymous" access to files or who maintain gopher servers.'7 As previously explained, evidence adduced at the three-day hearing suggests that some form of verification is technologically feasible for at least one mode of on-line communication relevant for our purposes: the World Wide Web. See Findings o f Faa, t'We note that an FTP server can be configured to verify a password against a list of passwords issued to users maintaining an account on the server before permi tting access to certain files. A provider opting for such a configuration, however, would n ot be able to make files falling within the scope of the CDA broadly available to "anonym ous" adult users-i.e., users without an account on the system. Moreover, such a config uration is impracticable insofar as it requires the maintenance of an extensive databa se of authorized user names and passwords. 51 supra, pp. 31-32. Based on this evidence of record, ie is possible to concl ude that ~ 223(e)(5)(B) serves as an adequate defense for at least certain commercia l providers of Web content-specifically, those who primarily make Web content available for "p urchase" or, put another way, those who charge Web users to gain access to, and view, th eir content. Many commercial content providers charge a fee to permit a user to gain acc ess tO sexually explicit content, thus necessitating credit card verification in any event. Nevertheless, we note that the category of "commercial content providers" is itself somewhat elusive, and it is not clear that all content providers who could be termed "commercial" co ntent providers could absorb the cost of credit card verification. Consider, for example, a software developer who makes a program available on line for users to download (that is, copy to the hard drive of the user's computer) without charge, for a short trial pe riod, with the understanding that the user will remit a registration fee if the user decid es to retain the program after the trial period. Although the software developer has a comme rcial purpose, it is not clear that he could bear the economic burden of verifying the cre dit cards of all those who access his software (as opposed to those who ultimately enter int o a licensing agreement). Were S 223(e)(5)(B) the only defense available to providers of Internet con tent, the conclusion would be inescapable that the provision challenged by the plaint iff reaches a substantial amount of protected speech and is therefore constitutionally in firm. For speakers using most Internet applications e mail, newsgroups, chat rooms-S 223(e)(5)(B) is no defense at all; to avoid the threat of CDA liability, they would simply have to refrain 52 from engaging in constitutionally proteaed speech. Por non-commercial conte nt providers and possibly some commercial providers, credit card verification or mainten ance of a verification system would be extremely costly. The Government urges that al l Web content providers-commercial and non-commercial alike~could associate with "adult verification services." This argument ignores what is obvious from examinin g the advertisements and informational literature in the record regarding such se rvices: these services are used in conneaion with, and indeed gear their promotional mate rials toward, so called "adult" sites offering pornographic images and users of such site s. We have no doubt that it would be burdensome for some non-commercial and commercial co ntent providers wishing to make available other types of material arguably fallin g within the scope of the CDA, and for users wishing to retrieve such material, to assoc iate with "adult verification services. " 2. Good-Faith Defense We turn, then, to ~ 223(e)(5)(A), which provides a defense to CDA liability for content providers who, "in good faith," take "reasonable, effective, and ap propriate aaions under the circumstances," including any steps afeasible under available tec hnology" to prevent minors' access to communications falling within the scope of the CD A. The Conference Report accompanying the CDA emphasizes that the term "effective" is to be given "its common meaning and does not require an absolute 100% restriction of access to be judged effeaive." S. CONF. REP. No. 230, 104th Cong., 2d Sess. 190 (1996 ). 53 Although the statute does not require that a content provider take steps th at are one-hundred percent effective in restriaing minors' access to indecent comm unications, it is not disputed that S 223(d) cannot stand unless there are reasonably effecti ve means of ensuring that covered communications do not reach minors. (Oral Argument, J une 3, 1996, Tr. at 69-71; see supra p. 48) While the statute makes clear that a c ontent provider is permitted tO do anything that is "feasible" under current technology to res trict minors' access to covered communications, it does not by its terms allow content pr oviders to escape liability if there is no feasible and reasonably effective way of li miting minors' access to those communications. Throughout this litigation, the Government has att empted to identify certain steps-nowhere specifically set forth in the CDA-that conte nt providers could take that would, absent extraordinary circumstances, constitute subst antial evidence of a ~ 223(e)(5)(A) defense. On April 30, 1996, the Court directed the Gove rnment to obtain clarification of the Department of Justice position regarding the ap plicability of ~ 223(e)(5)(A). On May 3, 1996, the Government filed a letter from John C. Keeney, Acting Assistant Attorney General of the Criminal Division of the Departmen t of Justice ("Keeney Letter"), stating in pertinent part: Under present technology, non-commercial content providers can take steps to list their site[s] in URL registries of covered sites, register th eir site[s] with the marketplace of browsers and blocking software (including listing a n IP address), place their material in a directory blocked by screening softw are, or take other similarly effective affirmative steps to make their site[s] k nown to the world to allow the site[s] to be blocked. Under present technology, it is the position of the Department of Justice that, absent extraordinary circumstances, such eJ~orts would constitute substantial evidence that a co ntent provider had taken good faith, reasonable, effective, and appropriate aaion s under the circumstances to restrict or prevent access by minors to the covered material. The same would be true for tagging by content providers, 54 coupled with evidence that the tag would be screened by the marketplace of bnnusers and blocking software. (Emphasis supplied.) Following closing arguments on June 3, 1996, the Court ordered supplemental briefing by the Government focusing in particular on the techn ological feasibility and the effeaiveness of some of the steps set forth in the Keen ey Letter. We examine whether content providers using various forms of Internet communica tion can avail themselves of the good-faith defense set forth in ~ 223(e)(5)(A)-that is, whether ~ 223(e)(5)(A) enables them to engage in constitutionally proteaed communic ations without fear of criminal liability.18 We note at the outset that the Government has nowhere represented that the articulation of the Department of Justice's position in the Keeney Letter w ould prevent any United States Attorney from arguing in a particular prosecution that an y of the steps identified in the letter do not satisfy the requirements of ~ 223(e)(5)(A) . In faa, it appears that in the Philadelphia litigation, where the Government was granted leave to file the Keeney Letter, the Government expressly conceded that the letter does not p reclude a United States Attorney from taking a contrary position in particular litiga tion. See ACLU/ALA, 1996 WL 311865, at *58 n.20 (Dalzell, J.). In addition, neither ~ 223(e)(5)(A) itself nor the Government's representations concerning that seaion can be r ead to suggest that individuals t~king the enumerated steps need not fear prosecution (as distina from 18This inquiry is, of course, distina from an inquiry into whether the faa that ~ 223(e)(5)(A) nowhere identifies any specific steps that a content provide r can take to enter its "safe harbor" renders ~ 223(d) unconstitutionally vague, because indivi duals lack sufficient notice as to how to shield themselves from criminal liability un der the statute. The plaintiff does not press this argument here. 55 ultimate criminal liability). Section 223(e)(5)(A) (like S 223 (e)(5)tl3)) supplies a content provider with an affirmative defense, to be invoked after a criminal prosec utiOn has been initiated and after the Government has presented its case; the steps specif ied by the Government are said to constitute "substantial evidence" of the affirmative defense. Because ~ 223(e)(5)(A) in no way shields a content provider from prosecutio n, it cannot be said that the steps enumerated by the Government el~nate any chilling effea that the "patently offensive" provision otherwise would have. Even if we were satisfied that the Department of Justice's position regardi ng the scope of ~ 223(e)(5)(A), as stated in the Keeney Letter, could be uniformly implemented, that the Government would not prosecute individuals who had taken the enume rated steps, and that individual content providers' knowledge that they would not be pro secuted would eliminate any chilling effea that the challenged provision might otherwise have, we are unavoidably constrained to conclude that ~ 223(e)(5)(A) does not provide a safe harbor in a substantial number of circumstances. We examine the particular steps sugges ted by the Government. a. Tagging We look first to the concept of "tagging," the subjea of extensive testimon y at the evidentiary hearing, as described above. See Findings of Faa, ss~pra, at pp . 28-30. As one of the Government's expert witnesses testified, content providers wishing t o transmit or make available material that they believe to fall within the scope of the C DA could identify the material as such by inserting a tell-tale "tag" into a site's name or address. 56 Even assuming that content providers are able to distinguish accurately bet ween material subject to the CDA and material not subjea to the CDA, and assuming that an y requirement that content providers label constitutionally proteaed but pate ntly offensive communications would not lead a significant number of content providers to refrain from transmitting such communications, the tagging scheme suggested by the Gover nment's expert still fails to bring content providers within ~ 223(e)~5)(A)'s safe harbor, for several reasons. The simple aa of inserting a tag in the address of a domain, direa ory, or file; the name of a newsgroup or IRC channel; the subjea line of an e-mail message or newsgroup article; or the source code of an HTML document, is completely ineffeaive i n preventing minors' access to patently offensive materials. For a tagging scheme to be effeaive, the tag must be capable of being deteaed by server software designed to make the ma terials available or by client software used to request access to or to display suc h materials. (Olsen Test., Tr. at 321-22) Indeed, the Government has carefully avoided r epresenting that tagging alone constitutes "substantial evidence" that the content prov ider has used reasonable, effeaive, and appropriate means for preventing minors' access t o constitutionally proteacd communications. Rather, the Department of Justice has indicated that, absent unusual circumstances, evidence of tagging, "coupled with evidence that the tag would be screened by the marketplace of browsers and blocking softw are," would constitute substantial evidence of compliance with S 223(e)(5)(A). tKeeney Letter at 2 (emphasis supplied)) The evidence adduced at the hearing, however, indicate s that there is currently no tag (such as "-L18~) widely recognized as signaling that conte nt falls within the scope of the CDA. More important, the CDA imposes no obligation on the 57 manufaaurers of browsers and blocking software to configure their produas t o detea a particular tag; content providers' ability to mount a tagging defense depen ds upon the actions of these parties, whose cooperation is not required under the Act. Despite the lack of a recognized tag for CDA content, a content provider co uld presumably insert into an address a label-such as "sex" or "xxx"-designed t o trigger blocking features (even in the absence of a CDA tag agreed upon by the "mar ketplace of browsers and blocking software" or prescribed by law). It is unclear that t his step would satisfy either the terms of the government's policy as stated in the Keeney Letter or the plain language of the statute. The terms of the Keeney Letter contemplate s creening by the "marketplace of browsers and blocking software." As the Government has stre nuously argued, blocking software is not in wide use today. See supra p. 27. Accord ingly, even if content providers could offer evidence that they "tagged" content within th e reach of the CDA prior to displaying it, and that available blocking software is configu red to detea the tag, it is difficult to see how their aaions could be regarded as "effeaive " means of preventing minors from gaining access to materials. At the hearing, the Government introduced no evidence that any browser-that is, client software permitting a user tO view materials available on Web server s-is currently configured to detea and block access to a direaory or file containing a par ticular string of charzaers. After the Court ordered the Government to file supplemental mate rials regarding the Keeney Letter, the Government submitted an article detailing the release of a Microsoft browser, Internet Explorer 3.0, capable of screening content base d on labels compatible with PICS. (Supplemental Declaration of William J. Hoffman, Ex. C; see supra 58 p. 28) If a content provider were to tag a file with a name incorporating a PICS label, a minor seeking access to such a file on a system running this browser (appro priately set) could not do so. (Id.) The Government also points to the fact that CompuServe and Prodigy have lin ked their browsers to parental screening software offered by Cyber Patrol Joint Stip. 157) and that a browser offered by InterGO Communications includes a PICS compatible screening feature. Yet there are numerous other browsers lacking any screening featur es-including Netscape Navigator, which controls some eighty percent of the browser marke t. (Olsen Decl. 1 101) A content provider simply could not show that a tag is screene d by the amarketplace of browsers" when only a handful of browsers have screening ca pabilities. Even if it were possible to show that all browsers with screening features would detect a label, the Government has not suggested, much less proven, that browsers wi th such screening features are in wide use. Without such a showing, it is difficult to see how tagging could be aeffective" within the meaning of ~ 223(e)(5)(A). In sum, we fail to see how content providers attempting to carry a ~ 223(e) (5)(A) defense could do so by introducing evidence that they had tagged materials within the scope of the CDA and that browsers or blocking software in the "markaplace" can detect the tags. Without a showing that a range of browsers and blocking software capable of detecting the tag exist and are in wide use, tagging cannot be thought reas onably aeffective." If it is the Government's position that a content provider nee d not show that the relevant tag is widely screened-that is, screened by the "marketplace o f [available] browsers," not simply by a few browsers that may or may not be in wide use- it is at odds 59 with the statutory language, which requires that content providers take eff ective means to prevent minors' access to patently offensive materials. To put the matter s imply, unless and until blocking software is widely in place, or unless and until those w ho produce and market browsers-on whom Congress placed no obligations in the CDA-configure those browsers to recognize particular labels, tagging tO prevent minors' access tO material available on the Web cannot be "effeaive." Wc note also that "browsers" are client software designed to obtain access to material available on the World Wide Web. While some permit the user to eng age in other modes of Internet communication, there is no evidence that those with screening features would restria access to, for example, tagged newsgroups, mailing lists, and chat rooms. One of the Government's two expert witnesses testified that client s oftware enabling users to read e-mail and newsgroups, as manufaaured and distribute d, is not configured tO supply users with options to detea particular labels or tags in newsgroup names, e-mail addresses, or subjea lines accompanying articles and messages . (Olsen Test., Tr. at 331, 334) Such software can, however, be reconfigured by a user tO d etea particular tags. (Id. at 331) We doubt that a content provider could rely on tagging, coupled with the faa that e-mail and newsgroup readers can reconfigure their software to detea certain tags, as evidence of reasonable and effeaive efforts to prevent minors' acc ess to materials falling within the scope of the CDA. A content provider has no control over what client software a user installs, how the user reconfigures that software, or wheth er a minor can undo the reconfiguration. (Id. at 333, 334) Thus, a content provider has no way of ensuring that a message posted to a newsgroup or a mailing list will not be available to 60 persons under the age of eighteen; to rely on the combination of tagging an d client software to come within the ~ 223(e)(5)(A) defense, a content provider woul d have to assume that third parties-namely, the users-install and reconfigure softwar e, and would risk criminal liability if that dubious assumption proved incorrect. b. Placing Content in Blocked Directeries and Registering Content Having concluded that the tagging scheme pressed by the Government does not presently offer a substantial number of content providers an affirmative de fense to criminal liability under the CDA, we turn to other steps identified in the Keeney Le tter. Those steps fall roughly into two categories. First, the Keeney Letter sugg ests that steps taken by content providers to "place their material in a directory bl ocked by screening software" will constitute substantial evidence of compliance with ~ 223 (e)(5)(A).'9 For example, a content provider can take steps to ensure that the site is listed with a directory of sites containing "adult" material, such as a sec tion of the Internet Yellow Pages identifying adult materials (Hoffman Decl., Ex. 6) or a sectio n of an on-line directory system such as Yahoo reserved for sexually explicit materials. Th e record suggests that screening software such as SurfWatch is designed to block sit es listed in the 19The Keeney Letter also indicates that content providers can take steps to ensure that their sites are listed "in URL registries of covered sites." In response to the Court s request for supplemental submissions, the Government appears to suggest that "regis tries" are no different from "direaories," and that a "covered" site is a site blocked by screening software. (Defendant s Supplemental Post-Hearing Memorandum of Law, at 1 n. 1, 2) The steps by content providers contemplated here are essentially identical to " plac[ing] . . . material in a direaory blocked by screening software." (See also Olsen Test imony, Tr. at 44748) 61 Internet Yellow Pages under the category "X-Rated Resources." (Stipulated R ecord, Ex. M, at 137-39 (Duvall Test.); id. Ex. Q) Second, the Keeney Letter suggests that steps taken by content providers to "register their siteLs] with the marketplace of browsers and blocking software" will constitute substantial compliance with ~ 223(e)(5)(A). Attempting to lend substance to this language, the Government notes that certain commercial on-line services, Internet ser vice providers, browsers, and blocking software will block access to sites "registered" wit h their services. (Defendant's Supp. Memo. at 34) Thus, the Government contends that, "absent extraordinary circumstances," content providers who direaly register their sites with an unspecified number of such companies will have satisfied S 223(e)(5)(A). (I d.) Again, it appears that the Government's representation fails to help any su bstantial number of content providers to enter the safe harbor offered by S 223(e)(5) (A). As previously noted, the Government has offered no evidence, and does not cont end, that the products and services that offer to block site access cover even a signific ant portion of the available market. If that portion were not significant, site registration w ould accomplish little, and would certainly not serve as an "effeaive" means to restrict th e access of minors to Internet content. Similarly, the effeaiveness of securing a listing in a directory containing sexually explicit sites depends upon households' voluntary use o f blocking software. The Government strenuously argues-and we have found-that blocking software is not widely used (Defendant's Post-Hearing Memo. at 54-55; see s upra p. 27), and content providers certainly cannot cause its greater use. 62 We note in passing two additional steps for compliance with S 223(e)(5)(A) offered by the Government but not included in the Keeney Letter. The Government sug gests that those adults who wish to exchange indecent communications can do so by conf ining those communications to limited membership or limited access forums. For example , an adult user could post indecent e-mail only to "closed" mailing lists, whose subsc ribers could be "approved" based on age. As previously noted, however, an ~mail address pro vides no authoritative information about a subscriber; an individual managing a "clo sed" mailing list would have to use some other means of identi*ing subscribers' ages. The Gov ernment suggests none; presumably, the list manager could obtain a credit card numb er from each subscriber. Again, however, verification would be costly, and not likely an option for a noncommercial content provider. The Government also urges that content providers could post indecent materi al to limuted newsgroups. A newsgroup cannot be limited in the same sense as a ma iling list; communications are not transmitted from a central server, but are passed am ong servers participating in the Usenet system. Accordingly, a limited newsgroup is ach ieved by restriaing the number of servers on which posted articles appear. Although the concept is not well developed in the record, it is clear that the server or servers on which the newsgroup is available would need the capacity to v eri* that any user requesting access to an article is an adult. (Olsen Decl. 117~87 (desc ribing concept of a "verified server")) The Government's suggestion assumes that users will p ossess the resources and expertise to establish and maintain a server; although severa l individuals or entities could share a single server, the record suggests that the cost of establishing a server 63 is not trivial-indeed, the price could range beyond three-thousand dollars. (Galligher Test., Tr. at 182 (describing cost of maintaining mail server)) In sum, there is no persuasive evidence that a substantial proportion of In ternet content providers can make available material potentially within the scope of the CDA without fear of prosecution and criminal liability. Leaving aside the faa t hat ~ 223(e)(5) sets forth affirmative defenses-and thus offers no assurance that a content provider will not be prosecuted-the proffered defenses are unavailable for numerous Inter net corltent providers. The Government suggests that content providers should "tag" thei r material, but recognizes that the effeaiveness of tagging depends wholly on the actio ns of third parties-manufaaurers of client software-on whom the Act places no obligatio ns whatsoever. The Government also suggests that registration with the "market place of browsing and blocking software" will constitute "substantial evidence" of g ood faith, despite the faa that the effectiveness of such steps depends on the availab ility and use of services that offer to block sites, browsers that have screening capabiliti es, or blocking software. (See Defendant's Post-Hearing Memo. at 4445) In the absence of ev idence that the marketplace aaually offers a substantial number of services and produas with blocking capabilities-and, indeed, in the face of evidence that households do not te nd to use existing parental control software, see supra p. 27-the Government's position is unt enable. We have no doubt that, under current technology, the availability of a good-fa ith defense in ~ 223 (e)(53 (A) will not lessen the chill on protected expression created by S 223(d) of the CDA. (See Oral Argument, June 3, 1996, Tr. at 18) The Government urges that we overlook the faa that the standards and client software necessary to ensure that content providers can enter ~ 223(e)(5)(A )'s safe harbor are not currently in place, and that we trust that standards and technology will evolve rapidly in response to the CDA. The Government thus argues that a defense t o criminal liability under a statute regulating constitutionally proteaed speech is no t now available but will be in short order. We decline to accept such an argument. We canno t uphold a statute against a First Amendment challenge in the uncertain expectation th at future technology will remedy any constitutional infirmities. Even if we could be certain that technological advancement would rapidly render the good-faith defense pract icable, we necessarily decide questions of law in the faaual context of the world as w e know it, mindful that restriaions on First Amendment freedoms, "for even minimal per iods of time, unquestionably constitutes irreparable injury." Elrod, 427 U.S. at 37 3. Section 223(e)(5)(A) offers the only possible defense for those who wish to communicate by e-mail, newsgroups, or chat rooms or those who choose to mak e files available by running an FTP or gopher server. In addition, it offers the on ly defense for non-commercial-and possibly some commercial-content providers of World Wide Web material. The faa that S 223(e)(5)(B) may offer a defense to Web providers who primarily make content available for purchase leads the Government to urge that, at a minimum, we uphold ~ 223(d) as to commercial providers of Web content.20 20We note that in the ACLU/ALA, the Government apparently urged an even narrower approach-namely, that the Court uphold the statute as to commercia l purveyors of pornography. See ACLU/ALA, 1996 WL 311865, at *33 (Sloviter, C.J.); 9( O ral Argument, Shea u Reno, June 3, 1996, Tr. at 74-75. 65 We recognize that courts should attempt to limit a statute's scope before r esolving to declare it facially void. Two roads are available in this respect; a cou rt can strike a portion of a statutory provision, leaving the remainder of the legislation intaa, or it can leave the law's language in place but assign to it a narrow meaning. Howeve r, the circumstances here presented do not permit us either of these options tO sa ve part, if not all, of the statute. The Supreme Court has repeatedly recognized the "'elementary principle that the same statute may be in part constitutional and in part unconstitutional, an d that if the parts are wholly independent of each other, that which is constitutional ma y stand while that which is unconstitutional will be rejeaed.'" Brockett v. Spokane Arcad es, Inc., 472 U.S. 491,502 (1985) (quoting Allen v. Louisiana, 103 U.S.80, 83-84 (1881)). Wher e it is possible to identify in the text of a statute particular language that is unconstitu tional, a court should attempt to strike only that language, provided that the remainder of the statute can funaion effeaively without the excised portion and that the resulting whole is consistent with the intent and design of Congress. Alaska Airlines, Inc. v. Brock, 480 U.S.678, 684-85 (1987). Thus, for example, in Brockett, the Court reversed the appellate co urt's facial invalidation of Washington's moral nuisance statute, finding that the statu te could survive a First Amendment attack if, at worst, the word "lust" were struck from its d efinitional seaion. 472 U.S. at 504-07; see also Alaska Airlines, Inc., 480 U.S. at 697 (striking down statute's legislative vao component only). The statute at issue in the instant case, however, nowhere distinguishes be tween categories of content providers. Even if we were to accept the Government's position that 66 the statute could be constitutionally applied to commercial providers of in decent material, we are not in a position to excise particular statutory language in an effo rt to salvage the provision, because we cannot identify a "wholly independent" portion of the law that can be described as constitutionally infirm. Nor would it be appropriate for the Court to assign a narrow construaion tO the statute's existing language. Although we recognize that this is the proper approach in many instances, see, e.g., National Advertising G. ~v. City of Orange, 861 F~2d 246 (9th Cir. 1988) (construing Orange City anti-billboard ordinance to apply only to com mercial billboards); Doyle u Suffolk County, 786 F.2d 523 (2d Cir.) (saving New Yor k law from invalidity under ADEA by exempting individuals aged forty to seventy from i ts prohibition on applicants over age twenty-nine), cert. denied, 479 U.S. 825 (1986), there are limits on the extent to which the courts can salvage legislation through li miting interpretation. A statutory provision must be "easily susceptible of a narr owing construaion." Ennoznik u City of Jaclesonville, 422 U.S. 205, 216 (1975) (d eclining to construe city ordinance narrowly to avoid First Amendment facial invalidati on); Virginia u American Boolesellers Ass'n, 484 U.S. 383, 397 (1988) (diaa) (noting that U the statute must be 'readily susceptible' to the limitation; we will not rewrite a state law to conform it to constitutional requirements-). Otherwise, the courts risk intrusion into th e legislative sphere. See United States u National Treasury Employees Union, 115 S.Ct. 10 03, 1019 (1995) (declining to read nexus requirement into Ethics in Government Aa, noting i ts "obligation to avoid judicial legislation. and concluding, "We cannot be sure that our attempt to 67 redraft the statute . . . would correctly identify the nexus Congress would have adopted ....n). In the instant case, we would need to limit the statutory term "any person" to mean "any commercial content provider," or, possibly, "any commercial provider of Web con tent," or even "any commercial purveyor of pornography on the World Wide Web." The statute is far from "readily susceptible" to any such limitation. Rather, any such int erpretation would fly in the face of a clear congressional intent to apply the statute's pros criptions to commercial and noncommercial content providers alike. See S. CONF. REP. No. 230, 104th Cong., 2d Sess. 191 (1996). The construaion of the statute urged by the Gov ernment here would require the court to substantially redraft the statute-in effea, to u surp Congress's legislative funaions. We cannot accept the invitation to so reconfigure thi s statute and thus engage in judicial legislation-the very "judicial legislation" that the Sup reme Court condemned in National Treasury Employees Union. Nor does the statute at issue in the instant case lend itself to a gradual narr owing through case-by-case adjudication along the lines of the Supreme Court's ap proach in Broadrick, 413 U.S. at 601. In Broadrick, the Court limited its holding to the parties before it in the express expeastion that subsequent cases would serve to define the s tatute's proper scope. It did so, however, recognizing that the potential range of the law' s unconstitutional applications was not "substantial . . . in relation to the statute's plainl y legitimate sweep." Id. at 616; see also New York v. Fertser, 458 U.S. 747, 773-74 (1982). In the i nstant case, the evidence suggests that the set of content providers whose speech could be constitutionally proscribed is in fact exceeded, perhaps even overshadowed, by the 68 number of users whose speech is constitutionally protected. Under these cir cumstances, this Court may not leave to subsequent adjudication the task of defining th e potentially expansive set of users who should be outside the statute's scope. CONCLUSION To summarize, we find as follows: (1) The plaintiff has not demonstrated a likelihood of success on his claim that 223(d) is void as unconstitutionally vague. (2) The plaintiff has demonstrated a likelihood of success on the merits of his second substantial overbreadth claim, that S 223(d) serves as a ban on cons titutionally protected indecent communication between adults; (a) The Government has conceded that ~ 223(d), standing alone, is unconstitutional as a total ban on protected indecent communication between adults; (b) Current technology provides no feasible means for most content providers to avail themselves of the two affirmative defenses to S 223(d) s et out in 223(e)(5). 69 Accordingly, the plaintiff's Motion for a Preliminary Injunction (filed Feb . 17, 1996) is granted: the defendant is preliminarily enjoined, until further order of this Court, from initiating any investigation or prosecution under ~ 223(d), to the extent t hat such investigation or prosecution is based upon the alleged display or transmiss ion of indecent but not obscene material. It is so ordered. ENTERED in New York, New York, this day of July, 1996. Jose A. Cabranes United States Circuit Judge Leonard B. Sand United States District Judge Denise Cote United States District Judge END OF DECISION _________________________________________________________________ CLICKSHARE QUICK LINKS TO: CLICKSHARE HOME PAGE | TEST DRIVE CLICKSHARE | NEWSHARE/CLICKSHARE NEWS | GENERAL NEWS TOP | NEWS TOPICS | WHAT'S NEW | HOME PAGE | LEAVE A COMMENT _________________________________________________________________ Newshare and Clickshare are service marks of Clickshare Corp. Copyright, 1996, Clickshare Corp. All rights reserved. _________________________________________________________________ Clickshare Corp. Corp. 75 Water St., P.O. Box 266 Williamstown, MA 01267-0367 USA VOICE: (413) 458-8001 FAX: (413) 458-8002 EMAIL: corp@clickshare.com