IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA AMERICAN CIVIL LIBERTIES UNION, : CIVIL ACTION et al., : : v. : : JANET RENO, Attorney General of : the United States : No. 96-963 _____________________________________________________________ AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION INC., et al., : : v. : : UNITED STATES DEP'T OF JUSTICE : et al. : No. 96-1458 ALA PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION Bruce J. Ennis, Jr. Donald B. Verrilli, Jr. Ann M. Kappler John B. Morris, Jr. JENNER & BLOCK 601 Thirteenth Street, N.W. Washington, D.C. 20005 (202) 639-6000 Ronald P. Schiller (Atty ID 41357) David L. Weinreb (Atty ID 75557) PIPER & MARBURY, L.L.P. 3400 Two Logan Square 18th & Arch Streets Philadelphia, PA 19103 (215) 656-3365 COUNSEL FOR ALL PLAINTIFFS TABLE OF CONTENTS Page Introduction......................................... STATEMENT OF THE CASE................................ A. The Internet, And "Cyberspace" Generally, Is A Unique Medium of Communication........ Creation of the Internet and the Development of Cyberspace.................. How Individuals Access the Internet........ Methods to Communicate Over the Internet... B. The Act Applies To A Very Broad Category Of Protected Speech, And To A Diverse Range Of Speakers And Communicative Activities................................. C. The Defenses Provided In The Act Do Not Provide A Technologically or Economically Feasible Means For Most Internet Speakers To Shield Themselves From Liability........ D. There Are Existing Ways To Protect Minors From Speech That Would Be Inappropriate For Them, That Do Not Ban Or Burden Speech To Adults........................... ARGUMENT............................................. I. THE ACT EFFECTIVELY BANS AN ENORMOUS QUANTITY OF SPEECH THAT IS CONSTITUTIONALLY PROTECTED FOR ADULTS, AND THE SUPREME COURT HAS REPEATEDLY HELD THAT GOVERNMENT CANNOT REDUCE THE ADULT POPULATION TO READING AND VIEWING ONLY WHAT IS APPROPRIATE FOR CHILDREN........................ A. The Act's Content-Based Restrictions On Indecent Speech Are Subject To Strict Scrutiny, And Cannot Be Upheld Unless the Government Proves That the Restrictions Materially Advance a Compelling Interest In the Least Restrictive Way, And Proves That the Benefit To Be Gained From the Restrictions Outweighs And Does Not Unduly Burden the First Amendment Rights of Adults..................................... B. The Challenged Provisions Of The Act Violate The Principles Established In Butler, Bolger And Sable That Adults Cannot Be Reduced To Reading And Viewing Only What Is Appropriate For Children...... C. The Act Also Violates The First Amendment Because The Government Cannot Prove That It Materially Advances A Compelling Interest In The Least Restrictive Manner... II. THE ACT IS SUBSTANTIALLY AND FATALLY OVERBROAD.. A. The Subsection (d) "Display" Prohibition Is Grossly Overbroad Because in Nearly Every Application, It Bans or Severely Burdens Speech That Is Constitutionally Protected for Adults....................... B. The Act Is Also Overbroad Because It Prohibits Speech to All Persons Under 18 Years of Age on the Basis of What Is Inappropriate for Young Children........ III. THE SWEEPING PROHIBITION OF PROTECTED SPEECH ON THE INTERNET CANNOT BE SAVED BY ANALOGY TO CASES IN WHICH COURTS HAVE UPHELD LIMITED INDECENCY RESTRICTIONS SHORT OF A BAN, OR BY INVOKING THE STANDARDS OF FIRST AMENDMENT REVIEW GOVERNING BROADCAST MEDIA................ A. Judicial Decisions Upholding Narrow Indecency Restriction for "Dial-a-Porn," Broadcast Media, and Leased Access Cable Television--None of Which Involved a Total Ban--Are Entirely Inapposite......... B. The Unique First Amendment Standards Governing the Broadcast Media Do Not Apply to Cyberspace........................ C. The Internet's Unmatched Capacity for Furthering the Core Policies of the First Amendment Requires That This Court Apply the Rigorous Standards of Scrutiny Normally Applicable to Content-Based Restrictions............................... IV. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR CLAIM THAT THE ACT IS UNCONSTITUTIONALLY VAGUE........ A. The Terms "Indecent" and "Patently Offensive As Measured By Contemporary Community Standards" Are Unconstitutionally Vague.... B. The Act's Defenses Are Unconstitutionally Vague...................................... V. THE IRREPARABLE HARM TO PLAINTIFFS, THEIR MEMBERS, AND THEIR SUBSCRIBERS, PATRONS, AND CUSTOMERS FAR OUTWEIGHS ANY HARM TO THE GOVERNMENT IF AN INJUNCTION ISSUES, AND THE PUBLIC INTEREST FAVORS INJUNCTIVE RELIEF........ CONCLUSION........................................... Introduction Plaintiffs represent a broad range of individuals and entities from the computer and communications industries and the general public who provide most of the access to the Internet, and a substantial volume of the communications carried on the Internet and other interactive computer systems./*1 Plaintiffs challenge provisions of the Communications Decency Act of 1996 (the "CDA" or "Act")/*2 that criminalize constitutionally protected communications among the adult population whenever those communications might be deemed "indecent" or "patently offensive" for minors. The challenged provisions violate the bedrock First Amendment principle that government cannot "reduce the adult population . . . to reading only what is fit for children." Butler v. Michigan, 352 U.S. 380, 383 (1957). STATEMENT OF THE CASE Four points are critical in this case. First, the Internet, and "cyberspace" generally, is an entirely new communications medium that differs from other media in crucial respects: it is global, it is decentralized, it gives ordinary citizens unparalleled ability to communicate to and with others on a scale never before possible, and it is unobtrusive, because users access only the communications they affirmatively request. It therefore merits the highest level of First Amendment protection. Second, the provisions of the Act that are the subject of this challenge -- Section 502(2), 47 U.S.C. 223(d), and Section 502(1), 47 U.S.C. 223(a)(1)(B) -- criminalize an enormous quantity of speech, all of which is constitutionally protected for adults, and apply to a vast and diverse range of speakers and speech activities. Third, because of the way the Internet works, the Act effectively bans the vast majority of that speech, and severely burdens the rest. Thus, in nearly every application, the challenged provisions abridge the First Amendment rights of adults. Fourth, effective methods exist to protect minors from online speech that is inappropriate for them, methods that do not deny adult access to that speech. A. The Internet, And "Cyberspace" Generally, Is A Unique Medium Of Communication./*3 Creation of the Internet and the Development of Cyberspace The Internet is not a physical or tangible entity. It is a giant network which interconnects innumerable smaller groups of linked computer networks: a network of networks./*4 This amalgam of computers and computer networks is a decentralized, unrestricted global medium of communications -- or "cyberspace" -- linking individuals, institutions, corporations, and governments around the world. Anyone with access to the Internet can use it to exchange ideas, research, software, poetry, images, literature, sound, or electronic mail. Communication can occur virtually instantaneously, and can be directed to specific individuals, broader groups, or the world as a whole. No entity -- academic, corporate, governmental, or non-profit -- controls the Internet./*5 It exists and functions solely because hundreds of thousands of computer operators and computer networks independently decided to use a common data transfer protocol to exchange information with other computers (which in turn exchange information with still other computers). Although the nature of the Internet makes it impossible to determine its size, it is estimated that over 5,000,000 host computers worldwide are linked to the Internet, and that over 50 million individuals around the world access this medium. Two hundred million users are expected by the year 1999./*6 There is no centralized storage location, control point, or communications channel for the Internet. It would be impossible for any single entity to regulate the information conveyed on the Internet./*7 How Individuals Access the Internet There are two common methods to establish an actual physical link to the Internet. First, individuals can use a computer or computer terminal that is directly connected to a computer network that is itself connected to the Internet. Second, individuals can use "personal computers" with "modems" to connect over a telephone line to a larger computer or computer network that is itself connected to the Internet./*8 Students, faculty, researchers, and others affiliated with most of colleges and universities in the United States can access the Internet through computers located in campus libraries, offices, computer centers and dormitories. Such access, considered vital to the educational process, enables students and professors to use information and content provided by the college or university itself, and to reach the vast research resources available on the Internet worldwide./*9 Similarly, many employers link their office computer networks, and provide their employees access to the Internet, to enable them to exchange information and ideas with others in their fields. Many communities have established "free-nets" or community networks to provide citizens a free or low-cost local Internet link (and provide local-oriented content and discussion groups) using computers available in community buildings. Libraries also often offer computers linked to the Internet at no cost to the individual user./*10 A growing number of "computer coffee shops" offer connection to the Internet at a modest fee. Individuals can also access the Internet through "Internet service providers." Some providers (including the members of plaintiff Commercial Internet Exchange Association) are commercial entities who charge a modest monthly or hourly fee./*11 Others (such as the International Internet Association) are non-profit organizations offering free or low-cost access. Access is also available through major national commercial "online services" such as America Online, Apple's eWorld, CompuServe, the Microsoft Network, or Prodigy. These online services offer nationwide computer networks (so that subscribers can dial-in to a local telephone number). In addition to allowing access to extensive and well-organized content within each proprietary network, the services allow subscribers to link to the much larger Internet resources. Full access to the online service (including the Internet) can be obtained for modest fees. The major commercial online services have almost twelve million individual subscribers across the United States./*12 Finally, with an investment of as little as $2,000.00 and the cost of a telephone line, individuals, non- profit organizations, advocacy groups, and businesses can offer their own dial-in computer "bulletin board systems" or "BBSs" to exchange ideas and information. BBSs range from single computers allowing only one user at a time to multiple linked computers allowing multiple simultaneous users. Some BBS systems charge a nominal fee, while many others are free. In part because the Internet is an unregulated "network of networks" with literally millions of access points and tens of millions of users, many users access the Internet anonymously or through a method that does not allow for clear identification by a remote content provider./*13 Methods to Communicate Over the Internet Once an individual has access to the Internet, there are a wide variety of different methods of communication and information exchange over the network. Most networks can be used to transmit text, data, computer programs, sound, or visual images. One-to-one messaging. The simplest method of communication is via "e-mail," which allows an individual to transmit a message to specific individuals./*14 One-to-many messaging. The Internet also contains thousands of automatic mailing list services (such as "listserv"), which allow a subscriber to transmit messages on a given topic that the listserv automatically forwards (via e-mail) to every other subscriber. This service enables subscribers to keep abreast of developments or events in a particular subject area./*15 Distributed message databases. Distributed message databases, such as "USENET newsgroups," are open discussions on particular topics. Users need not subscribe in advance. A message posted to a newsgroup is automatically forwarded to all computers that furnish access to the newsgroups (but not to any individual users). Messages are temporarily stored on each receiving computer where they are available for review and response. There are newsgroups on more than 1,500 subjects. In 1994, approximately 70,000 messages were posted to newsgroups daily, and were distributed to approximately 190,000 participating computers./*16 Real time communication. Individuals can engage in an immediate dialog -- in "real time" -- with other individuals on the Internet. In its simplest forms, "talk" allows one-to-one communications and "Internet Relay Chat" allows an individual to send a message that almost immediately appears on other individuals' computer screens. Commercial online services such as America Online, CompuServe, eWorld, the Microsoft Network, and Prodigy have their own "chat" systems allowing their members to converse./*17 Real time remote computer utilization. "Telnet" can be used to access remote computers. Students can use telnet to connect to a remote library's online card catalog. Individuals can link via telnet to a computer to interact directly with other users linked to the same computer. Content accessed via telnet is often created only at the time of the communication and occurs in "real time."/*18 Remote information retrieval. The final major category is the search for and retrieval of information located on remote computers, through means such as the "World Wide Web."/*19 Programs that "browse" the Web can display documents containing text, images, and sound, as well as "links" to other types of information or resources. Using these "hyperlinks," an individual can "click" using a computer mouse on the description of the resource and be immediately connected to the resource itself./*20 With all of these methods of communicating in cyberspace (except point-to-point mail), no information flows through cyberspace to a particular individual unless the individual requests the information./*21 Listservs, newsgroups, chat lines, telnet, ftp, gopher and the World Wide Web all require an affirmative request prior to an individual's receiving online information./*22 When an individual makes such a request, it is usually clear what type of content will be delivered. Most transmissions of content from specific sites on the Internet are in response to recipients' requests that could not have been anticipated more than a few moments earlier. Because information is located on millions of computers around the world, with no central organization or control, a user cannot possibly know which computers might have useful information until starting a search, and while searching may have no knowledge of where the computers accessed are physically located./*23 Thus, there is no way for a user to pre-register with every computer that potentially might contain useful content on a particular topic (and equally impossible for those content sites to maintain and continually update lists of registered users). Moreover, when exploring a topic, an individual might access dozens of newsgroups, telnet computers, and ftp, gopher, and Web sites around the world in a matter of minutes. If a user must request access from content providers (and prove he or she is not a minor) prior to actually viewing the information, as the Act requires, the Internet would lose much of its value as a dynamic and instantaneous research tool./*24 B. The Act Applies To A Very Broad Category Of Protected Speech, And To A Diverse Range Of Speakers And Communicative Activities. Plaintiffs are not challenging the Act to the extent it prohibits speech that is unprotected by the First Amendment -- including obscenity, see Miller v. California, 413 U.S. 15 (1973), and child pornography, New York v. Ferber, 458 U.S. 747 (1982)./*25 Nor do plaintiffs challenge the Act's prohibition of communications made with the intent to annoy, abuse, threaten, or harass the recipient, or provisions that prohibit communications designed to entice or lure minors into illegal activity. See, e.g., 47 U.S.C. 223(a)(1)(A),(C),(D),(E). Those communications are not constitutionally protected even for adults. But subsections 223(a) and (d) enact sweeping restrictions on speech that is constitutionally protected for adults. Indeed, the Act directly affects an extraordinarily broad category of speech, a massive volume of speech, and an extremely diverse range of speakers and speech activities. Subsection (a). The Act makes it a felony, punishable by two years in prison, for a person to knowingly transmit by "telecommunications device"/*26 "any comment, request, suggestion, proposal, image, or other communication which is . . . indecent" to a person whom the transmitter knows is under 18. 47 U.S.C. 223(a)(1)(B)./*27 This provision on its face prohibits any communications containing any indecent material whenever one participant knows another participant is under 18, and would make it illegal for a University library to transmit the text of Lady Chatterly's Lover or George Carlin's satirical "Seven Dirty Words" monologue to a portion of the University's freshman class, because those works have been judged "indecent."/*28 Subsection (d). Subsection (d) is even more sweeping. The provision makes it a felony, punishable by two years in prison, for anyone to knowingly use an "interactive computer service"/*29 to "display in a manner available to" a person under 18: any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs[.] 223(d)(1)(B) (emphasis added)./*30 This "display" prohibition is truly breathtaking in scope. Unlike the standard for obscenity, the Act's prohibition of "indecent" or "patently offensive" material is not restricted to materials with "prurient appeal." See Miller v. California, 413 U.S. 15, 24, (1973). To the contrary, while "[p]rurient appeal is an element of the obscene, . . . the normal definition of `indecent' merely refers to nonconformance with accepted standards of morality." FCC v. Pacifica Found., 438 U.S. 726, 740 (1978) (footnote omitted). Nor are subsections (a) or (d) limited to material that lacks serious literary, artistic, political or scientific value./*31 The Act plainly covers the so-called "seven dirty words," for those very words have been found "indecent" and "patently offensive" by the Supreme Court in Pacifica,/*32 and the Conference Report makes clear that Congress was adopting Pacifica./*33 Similarly, Senator Exon, the Act's principal sponsor, confirmed that the prohibition would apply to Playboy magazine. 141 Cong. Rec. S8330 (June 14, 1995) (Sen. Exon)./*34 Not surprisingly given the enormous quantity and diversity of information it carries, cyberspace contains a substantial amount of expression that might be deemed "indecent" or "patently offensive" for younger children./*35 This material includes serious works of fiction (containing descriptions of sexual conduct or vulgar language),/*36 use of profanity in casual conversations via e-mail, reproductions of artwork containing nudity or sexually explicit images, medical treatises (containing depictions or descriptions relating to sexually transmitted diseases and medical conditions), robust political or public policy debates containing vulgar language or expletives, and serious discussions of sexuality and relationships. See Action for Children's Television v. FCC, 852 F.2d 1332, 1340 (D.C. Cir. 1988)("ACT I"); Action for Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991) ("ACT II"), cert. denied, 503 U.S. 913 (1992). This type of information is an important part of the Internet materials accessible by researchers, members of the academic community and the public./*37 Indeed, in this litigation the government has cited and relied upon the "Rimm" study to illustrate the types of materials with which the Act is concerned./*38 That study, which was published in the Georgetown Law Journal, itself contains descriptions that could be deemed indecent or patently offensive within the meaning of the Act. See Deft ACLU Br. Ex. 9 at pp. 1880-1882. The text of that study is maintained online by the Carnegie Library of Pittsburgh, whose Director is understandably concerned with the "risk of criminal prosecution under the Act."/*39 It may now be a felony to post or maintain online the very materials the government has relied on in this litigation./*40 In addition to criminalizing a broad category of speech, the Act subjects an unusually broad category of speakers to the risk of imprisonment and substantial fines. Nearly every online user and service provider will of necessity employ either a "telecommunications device" or an "interactive computer service," or both. Almost all of the tens of millions of users of the Internet are "content providers." By the very nature of the Internet, most material that is stored in a database or made part of a bulletin board can be accessed by everyone, and is ipso facto "display[ed] in a manner available to" persons under 18./*41 Thus, the Act regulates the activity of virtually everyone who uses the Internet or cyberspace. C. The Defenses Provided In The Act Do Not Provide A Technologically or Economically Feasible Means For Most Internet Speakers To Shield Themselves From Liability. Recognizing that the First Amendment forbids a flat prohibition of indecency on the scale imposed by subsections (a) and (d),/*42 Congress sought to narrow the sweeping effect of the Act by providing a defense to a criminal prosecution under (a)(1)(B) or (d), or under (a)(2) for use of a facility for an activity under (a)(1)(B), if the defendant (A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or (B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number. 47 U.S.C. 223(e)(5)). These "defenses," which the Act's sponsors borrowed directly from "dial-a-porn" legislation, were intended to provide a means to preserve access for adults while denying access to minors. Thus, the clear premise of the Act was the assumption that the "defenses" that worked in the dial-a-porn context would work in cyberspace, and that, for that reason, the Act would not effectively ban constitutionally protected indecent speech between adults. That premise is flatly incorrect. Fee-based content providers -- who typically require credit card payment for users' access to their speech -- may be able to avail themselves of the "verified credit card" defense allowed by the Act./*43 But for content providers who speak to the public at large, and do not charge for access to their speech, there is no practical way the speaker can control who can access the message. Thus, for a huge quantity of speech on the Internet, it is impossible for the speaker to prevent the speech from being "display[ed] in a manner available to a person under 18." 47 U.S.C. 223(2)(d)(1)(B)./*44 The primary methods used to access information on the Internet simply do not permit individual or non- commercial content providers to control access to their speech. None of the major methods of accessing information -- including electronic mail, listservs, newsgroups, chat lines, telnet, and the World Wide Web -- have the ability to track the millions of individuals who access the Internet and screen out those that are under 18./*45 With USENET newsgroups, for example, once a content provider posts a message to a newsgroup, that message is automatically distributed to over 190,000 computers around the world, and the individual content provider has no ability whatsoever to control who is permitted to access the content on those computers./*46 Even larger organizations that provide content on the Internet cannot practically or economically track the millions of Internet users to determine whether those users are minors or adults./*47 Such a requirement would effectively compel these content providers to refrain completely from posting any material that could be deemed "indecent" or "patently offensive" for minors./*48 Although password-required access to content is possible (and is used in some circumstances),/*49 the password system envisioned by the Act would effectively remove from public access an enormous volume of valuable content on the Internet, and would, in large part, reduce the information available to adults on the Internet to that deemed suitable for minors./*50 Because of the infeasibility of the statutory defenses, the Act effectively bans an entire category of constitutionally protected speech among adults. For this reason, the Act will actually frustrate, rather than further, the Congressional policy goals. The Act specifies that "[i]t is the policy of the United States . . . to promote the continued development of the Internet and other interactive computer services . . . to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." 47 U.S.C. 230. Instead of a free, vibrant and unfettered market, cyberspace will be a cramped and highly regulated market, where all speakers will have to choose their words with great care. D. There Are Existing Ways To Protect Minors From Speech That Would Be Inappropriate For Them, That Do Not Ban Or Burden Speech To Adults. The online medium offers the recipients of information a degree of control unmatched in any other medium. Not only can users affirmatively select the content of materials they view based on the subject matter of the particular service or the information contained in the headline or subject line, but there are also numerous -- and expanding -- methods for users to screen and block incoming materials they choose not to receive. Commercial online services such as America Online, CompuServe, the Microsoft Network, and Prodigy offer technologies that allow parents to block their children's access to inappropriate content./*51 These online services, for example, include a feature that allows parents to prevent their children from accessing interactive discussion forums (chat rooms). They also offer parents the ability to block access to some or all of the Internet (including the World Wide Web and USENET newsgroups) based on keywords, subject matter, or specific newsgroups. A variety of software providers have developed applications to use in conjunction with commercial online services, while others are designed for direct Internet access. SurfWatch, for example, allows parents to block access to USENET newsgroups, World Wide Web, gopher, and ftp sites with sexually explicit content./*52 The service automatically updates the list of blocked sites, without any intervention required from the user./*53 Similarly, Cyber Patrol blocks access to locations and content on the Internet based both on a list of identified sites and on a scan for certain key words suggesting sexual content./*54 Certain of these screening programs can be set to keep a log of all activity that occurs on the computer, allowing parents to monitor a child's use. All of these programs contain safeguards to prevent children from circumventing the blocking software./*55 User-based content control programs provide parents and others flexibility to select the kinds of content to be screened. For example, Cyber Patrol allows parents to choose to screen out some or all of 12 separate categories of content./*56 Moreover, these programs allow parents to modify the screening criteria as their young children mature into teenagers and young adults. This screening technology is available at little or no cost to parents and other computer users. Online services make their internal parental control systems, as well as Cyber Patrol, Surfwatch, and similar software, available to parents at no additional charge./*57 Microsystems Software, Inc. offers a version of Cyber Patrol that anyone can obtain for free over the Internet./*58 Retail versions of this type of blocking software costs between $20.00 and $50.00./*59 Additionally, the World Wide Web Consortium/*60 has promulgated a communications standard to facilitate this type of user-based blocking. The Platform for Internet Content Selection ("PICS") defines the precise method by which content ratings can be transmitted to user-based blocking software./*61 The PICS standard allows all user-based blocking software to be compatible, and to utilize common databases of content ratings. Under the PICS standard, any third party organization (such as a church, parents' organization, or pediatric association) can rate Internet content according to that organization's own values, and those ratings can be accessed by user-based blocking software. The PICS standard has been implemented in blocking software such as Surfwatch and Cyber Patrol,/*62 and Cyber Patrol has made its ratings available on the Internet in a PICS-compatible database. With PICS, parents will be able to further tailor the content available to their children according to the parents' own values. ARGUMENT The requirements for issuance of a preliminary injunction are likelihood of success on the merits and irreparable injury if an injunction does not issue. Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990). The court must also consider the public interest. Id. This test is easily met here. As the accompanying declarations show, the Act is currently causing irreparable injury to the First Amendment rights of plaintiffs, their members, and their subscribers, patrons, and customers, while also causing irreparable injury to the public interest in free expression, and particularly to the First Amendment right of adults to receive expression that is indisputably protected for them. Plaintiffs will now show that governing Supreme Court precedent virtually assures their ultimate success on the merits. I. THE ACT EFFECTIVELY BANS AN ENORMOUS QUANTITY OF SPEECH THAT IS CONSTITUTIONALLY PROTECTED FOR ADULTS, AND THE SUPREME COURT HAS REPEATEDLY HELD THAT GOVERNMENT CANNOT REDUCE THE ADULT POPULATION TO READING AND VIEWING ONLY WHAT IS APPROPRIATE FOR CHILDREN. A. The Act's Content-Based Restrictions On Indecent Speech Are Subject To Strict Scrutiny, And Cannot Be Upheld Unless the Government Proves That the Restrictions Materially Advance a Compelling Interest In the Least Restrictive Way, And Proves That the Benefit To Be Gained From the Restrictions Outweighs And Does Not Unduly Burden the First Amendment Rights Of Adults. "At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal." Turner Broadcasting System, Inc. v. FCC, 114 S.Ct. 2445, 2458 (1994). For this reason, "the First Amendment . . . does not countenance governmental control over the content of messages expressed by private individuals," and courts must "apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content." Id. at 2458-59. Accord Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105, 117 (1991). The Act is such a law. It singles out for suppression words and images that describe or depict sexual or excretory activity in a manner deemed "indecent" or "patently offensive" for persons under 18. Thus, the Act is subject to the most exacting First Amendment scrutiny. It must be struck down unless the government demonstrates it serves a compelling interest, and that it does so "by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms." Sable Communications v. FCC, 492 U.S. 115, 126 (1989). The Supreme Court has foreclosed any argument that so-called "indecent" expression should be subject to a less exacting standard of review. Sable, 492 U.S. at 126. Noting that "[s]exual expression which is indecent but not obscene is protected by the First Amendment," the Court unanimously held that an act of Congress prohibiting the transmission of indecent messages over telephone lines for commercial purposes was subject to, and could not survive, strict scrutiny. Id. This Circuit has likewise held that laws regulating so-called "indecent" expression must receive the most exacting First Amendment scrutiny. Fabulous Assoc. Inc., v. Pennsylvania Pub. Util. Comm., 896 F.2d 780, 784-85 (3d Cir. 1990). Strict scrutiny is amply justified because the category of "indecency" sweeps in vast quantities of valuable -- though often controversial or unsettling -- expression. The Act prohibits the transmission of serious works of fiction or drama that treat sexual themes with any degree of explicitness. It likewise prohibits constitutionally protected profanity, whether in robust political debate, e.g. Cohen v. California, 403 U.S. 15 (1971) ("Fuck the draft"), in biting social criticism, e.g. Hustler Magazine v. Falwell, 485 U.S. 46, 48 (1988) (vulgar satire of religious figure depicting "drunken incestuous rendezvous with his mother in an outhouse"), or in casual, private conversations. And the Act also encompasses works of science and medicine, or public health information dealing with sex. It is precisely because such expression may be provocative, or even offensive, that full First Amendment protection is necessary. "[P]ersons who voice acceptable viewpoints or who are able to articulate their goals and interests in terms which are either shared or accepted as legitimate by those who shape official policy are seldom in need of the [First] Amendment's support. It is when we must face the unpopular or distasteful expression that the concept of free speech needs its most vigilant protection." Aiello v. City of Wilmington, Del., 623 F.2d 845, 859 (3d Cir. 1980) (Sloviter, J., concurring in part); see also Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting, joined by Brandeis, J.). Application of strict First Amendment scrutiny to "indecency" regulations poses a particular challenge because such expression is simultaneously valuable (and protected) for an adult audience and potentially harmful (and thus regulable) for children. But one thing is clear: government may not resolve this tension by simply suppressing indecent speech altogether in order to protect children. Indeed, it is bedrock First Amendment law that "government may not `reduce the adult population . . . to . . . only what is fit for children.'"/*63 "The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox," and this is so "regardless of the strength of the government's interest" in protecting children. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74-75 (1983) (emphasis added). It is settled that government may not constitutionally "quarantin[e] the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence." Butler, 352 U.S. at 383. A federal statute is unconstitutional if it has the "effect of limiting the content of adult [communications] to that which is suitable for children." Sable, 492 U.S. at 131 (emphasis added)./*64 Thus, in the "indecency" context it is particularly important that strict scrutiny not be reduced to a mechanical, formalistic inquiry into whether government's posited interest is compelling, and its chosen means are narrowly tailored. Rather, strict scrutiny demands that "the benefit gained [by a content-based restriction] must outweigh the loss of constitutionally protected rights." Elrod v. Burns, 427 U.S. 347, 363 (1976). Accord Burns v. County of Cambria, Pa., 971 F.2d 1015, 1021 (3d Cir. 1992), cert. denied, 506 U.S. 1081 (1993). A reviewing court must undertake a "balancing process," Sable, 492 U.S. at 127 (Scalia, J., concurring), to determine whether the benefits to children of a restriction on indecency are sufficient to outweigh the loss of adults' constitutional rights. Accord Fabulous Assoc., 896 F.2d at 787-88. See also Bolger 463 U.S. at 73./*65 Simply put, government may not "burn the house to roast the pig." Butler, 352 U.S. at 383; Sable, 492 U.S. at 127. Applying these principles, no court has ever upheld an indecency regulation that on its face, or in its practical application, banned "indecency" from any medium. In Sable, a unanimous Supreme Court struck down a ban on telephone indecency, notwithstanding that "enterprising youngsters could and would evade" less restrictive regulatory mechanisms which would have better protected adults' rights. Sable 492 U.S. at 128. In Bolger, the Court struck down a ban on mail advertisements for contraceptives for the same reason. 463 U.S. at 73. In Butler, the Court invalidated a conviction for distributing indecent publications for the same reason. 352 U.S. at 381. Indecency regulations have been upheld only when government has proven that the regulation will provide substantial protection for children, while ensuring that adults have continued access to expression that is constitutionally protected for them. See Ginsberg v. New York, 390 U.S. 629, 634-35 (1968) (upholding prohibition or sale of material harmful to minors under 17 because prohibition did not bar sale to persons over 17). As we will show, a straightforward application of these settled principles invalidates the Act, for two reasons. First, the burden imposed by the Act's restrictions on indecency is so severe in relation to the marginal gains in protecting minors achieved by the law that it must be struck down. Second, the government cannot meet its heavy burden of proving that the Act directly advances a compelling interest in the least restrictive way. B. The Challenged Provisions Of The Act Violate The Principles Established In Butler, Bolger And Sable That Adults Cannot Be Reduced To Reading And Viewing Only What Is Appropriate For Children. Like the laws struck down in Butler, Bolger, Sable and Fabulous Assoc., the Act must be invalidated because it denies the millions of adults who use the Internet access to constitutionally protected expression in order to ensure that minors are not exposed to indecency. Subsection (d) in particular criminalizes dissemination of "indecency" on the Internet in any manner that will result in its being "available" to minors. Almost all "indecent" communication disseminated on the Internet will be "available" to minors because there is no feasible way for most speakers in most formats to limit who has access to communications they disseminate./*66 The only way for those speakers to ensure compliance with the Act is to undertake the enormous effort and expense of maintaining either a database that allows them to screen requests for access, or individually verifying requesters' age each time a request is received. Individuals and other noncommercial content providers such as libraries and universities could not possibly afford such an expense./*67 Furthermore, even apart from their cost, such "screening" methods simply cannot work with respect to several ways of communicating on the Internet, including listservs and newsgroups./*68 Thus, the Act leaves the majority of Internet content providers with only one choice: to avoid the risk of criminal prosecution and incarceration, they must self-censor all expression that might be deemed "indecent" or "patently offensive." This is, for all practical purposes, a ban of "indecency" on the Internet. The suppressive effect of this ban is truly staggering. As demonstrated, the Act's prohibitions sweep in a vast quantity of valuable, fully protected expression. And those prohibitions apply to tens of millions of Internet users. Thus, the Act is entirely unlike prior indecency laws, which targeted narrow and well-defined types of speech and particular forms of communication (such as dial-a-porn). Congress has, in effect, prohibited the public communication of indecency. It is as if Congress had banned indecent speech in public parks or squares, or had banned the circulation of publications containing indecency. At bottom, the Act seems to contemplate an entirely restructured, indeed bifurcated, Internet -- one Internet accessible to adults, which will contain indecent materials, and an entirely separate Internet accessible to children, which will be scrubbed of indecent material. It postulates an entirely imaginary world that does not exist and cannot be created. It is no answer that the Act provides "defenses" to criminal prosecution for those who make good faith, reasonable efforts to block access by minors. The plain fact is that those defenses cannot be utilized by the vast majority of speakers to whom the Act applies. Only a small subset of Internet speakers -- those who sell information through credit cards or other mechanisms, or who can otherwise afford the enormous cost of screening users requesting access -- will have even the potential to take advantage of the defenses. And the Act would severely burden the speech of those speakers. Even if these "defenses" were available to most content providers -- and they are not -- they would not begin to cure the Act's constitutional infirmity. The Act does no more than provide Internet speakers the opportunity to convince a jury in a criminal case that they have acted "reasonably" and in "good faith" and have taken "effective" actions to prevent minors from accessing "indecent" or "patently offensive" communications. That hardly provides a meaningful check on the risk that speakers will self-censor valuable expression. By their nature, these defenses provide no guidance as to the line between lawful and unlawful expression; they invite -- indeed they require -- ad hoc, case-by-case judgments. "It is fictional to believe that anything less than extensive adjudications, under the impact of a variety of factual situations, will be required to clarify their meaning." Baggett v. Bullitt, 377 U.S. 360, 378 (1964). "[T]hose affected by a statute are entitled to be free of the burdens of defending prosecutions, however expeditious, aimed at hammering out the structure of the statute piecemeal." Dombrowski v. Pfister, 380 U.S. 479, 491 (1965). The Act will certainly deter would-be speakers from disseminating potentially indecent speech "because of doubt whether [the defense] can be proved in court or fear of the expense of having to do so." New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) (fear of civil liability). Such a risk is even more chilling here because potential speakers face not merely civil liability but the stigma of criminal conviction and severe criminal sanctions. Thus, the Act contains precisely the fatal flaw that led to invalidation of the indecency regulations at issue in Sable, Bolger, and Butler: in an attempt to preclude minors from access to indecent speech, Congress has effectively denied adults access to that speech as well. Upholding the Act's suppression of adult dissemination and receipt of "indecent" or "patently offensive" speech would be unprecedented. No court has ever held, in the context of any medium, that a ban on the transmission of indecent communications to adults satisfies this exacting standard. This Court should not endorse such an unprecedented intrusion on First Amendment rights. C. The Act Also Violates The First Amendment Because The Government Cannot Prove That It Materially Advances A Compelling Interest In The Least Restrictive Manner. The Act also violates the First Amendment irrespective of whether, in practical effect, it is a ban of the kind struck down in Sable. There is no doubt the Act will cause self-censorship of vast quantities of speech by those who simply cannot bring themselves within the Act's defenses, and will impose heavy financial burdens on speakers who can. These burdens will certainly inhibit speech, and thus drastically alter the content of expression on the Internet. Faced with the substantial cost and ongoing administrative burdens imposed by the Act's "defenses," most speakers will simply choose not to communicate anything arguably "indecent."/*69 The Supreme Court has made clear that "[a] law is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech." Simon & Schuster, 502 U.S. at 115 (emphasis added)./*70 The government must thus demonstrate a compelling need for imposing those burdens, and show that its interests could not be served by less drastic alternatives. It cannot make that showing here. In the abstract, the government has a compelling interest in protecting minors from communications harmful to their psychological and moral development. The government cannot, however, simply "posit the existence of" a problem to be cured; it "must demonstrate that the recited harms [here none were recited] are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner, 114 S. Ct. at 2470 (emphasis added). And the government also "bears the burden of showing that the remedy it has adopted does not 'burden substantially more speech than is necessary to further the government's legitimate interests.'" Id. (quoting Ward, 491 U.S. at 799). That showing cannot be made on the basis of the legislative record here. Congress made no findings regarding the provisions at issue, and compiled no empirical record demonstrating either their necessity or the basis for their constitutionality./*71 Leahy Dec. 9, 19, 28, Tab 24. Just as in Sable,/*72 Congress failed to examine how difficult it is for minors to access the indecent material restricted by the Act; how many minors, and of what ages, actually have accessed such material; the likely effectiveness of the measures Congress adopted in preventing access; the impact of those measures on speech protected by the First Amendment; the effectiveness of alternatives to the challenged provisions; and, in general, the extent to which the challenged provisions will materially further Congress' goal without abridging the First Amendment rights of adults. Cf. Sable, 492 U.S. at 129-30. The novelty and complexity of cyberspace makes the absence of careful factual inquiry particularly egregious. Congress appears not to have examined how online communications work; which types of online communications present a substantial risk for minors, and whether the communications about which Congress was concerned are primarily obscene or nonobscene, commercial or noncommercial, text or visual images; whether the "defenses" Congress established could, as a practical matter, be utilized; the ease or difficulty with which parents can control their children's online access; and the possibility that existing legal prohibitions suffice to address the concerns underlying the challenged provisions. Instead, as the government concedes, "Congress [did] no more than incorporate the standards for blocking access to 'dial-a- porn' messages'" (see Deft ACLU Br. at 29-30), without even considering whether those standards can be grafted on to the dramatically different, infinitely more complex, online computer medium. This failure to make a considered judgment as to the need, efficacy, and ramifications of the law has a direct impact on this Court's examination of the Act's constitutionality. Without findings, for example, the Court can have no clear sense of what Congress perceived as the precise harm to be remedied or of the precise goals Congress had in mind in enacting the challenged provisions. Thus, there is nothing to which the government can point in the record before Congress to meet its burden. Furthermore, far from advancing the government's interest "in a direct and material way," the Act "provides only the most limited incremental support for the interest asserted." See Bolger, 463 U.S. at 73. That is so for several reasons. First, there is no reason to think the government's interest will be inadequately served by "vigorously enforc[ing]" laws already on the books, which ban obscenity, child pornography, enticement of minors, and harassment. Riley v. National Fed'n. of the Blind, 487 U.S. 781, 800 (1988); accord FCC v. League of Women Voters, 468 U.S. 364, 398 (1984) (law is not narrowly tailored if government's goal is already served by "other regulatory means that intrude far less drastically upon [First Amendment] rights"); Village of Schaumburg v. Citizens For a Better Environment, 444 U.S. 620, 637 & n.11 (1980) (enforcement of existing laws against fraud would sufficiently serve purported governmental objective, therefore new law is not narrowly tailored). The expression prohibited by these other laws was plainly Congress' core concern, and that expression can be fully regulated without extending the Act's prohibition to "indecent" communications. Second, there are existing methods that are far more effective in limiting a minor's access to "indecent" or "patently offensive" online communications, without impeding adult access to expression that is fully protected as to them. Because the Internet is a global network with millions of users, speaker-based content restrictions cannot effectively control the availability of materials. The only effective way to protect children from inappropriate online material is through recipient-based strategies . . . by encouraging user-based tools that empower parents to control their children's online activities based on the parents' views of what is appropriate for their children./*73 The products we have described, and others like them (see Statement of the Case, Point D), provide parents these tools, and do so without the need for criminalizing the distribution to adults of constitutionally protected communications. These approaches are most consistent with the fundamental principle of our democracy that parents are responsible for the well-being and upbringing of their children. "It is cardinal . . . that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166 (1944). These technologies put the responsibility for making choices about minors' access to communications that might be deemed harmful or offensive to them precisely "where our society has traditionally placed it--on the shoulders of the parent." Fabulous Assoc., 896 F.2d at 788 (citing Bolger, 462 U.S. at 73-74). That these screening alternatives are not entirely foolproof does not diminish their value. As the Court held in Sable, "the desire to prevent 'a few of the most enterprising and disobedient young people,'" from securing access to such messages [is not] adequate justification for a statutory provision that ha[s] 'the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children.'" Fabulous Assoc., 896 F.2d at 788 (quoting Sable, 492 U.S. at 131.) Parental discretion and control is the "preferred method of dealing with such [offensive] material." Id. (citing Bolger, 463 U.S. at 73- 74). Even with regard to broadcast, which both the Court and Congress have acknowledged has "a uniquely pervasive presence in the lives of American children," Congress recognized that parental screening and blocking technologies can protect children from inappropriate broadcast programming, including "sexual video programming" or other "indecent material," without a government ban on content. See Act, 551. There, Congress required manufacturers to install a so-called "V-Chip" in televisions to allow reading of a rating system that will enable parents "easily to block violent, sexual or other programming that they believe harmful to their children," and authorized the FCC to develop a recommended rating system. Id. Plaintiffs are not suggesting that particular provision is constitutional. But in view of the fact that Congress contemporaneously determined that parental empowerment technologies would be an adequate and "narrowly tailored means" to protect children even from broadcast indecency, id., the government cannot possibly carry its burden of showing why parental empowerment technologies would not be adequate to protect children from indecency in cyberspace. Third, even if government had a compelling interest in banning indecent (but not obscene) visual images from the Internet -- and no such showing has been made -- the Act goes much farther, and needlessly embraces messages and files containing nothing but (electronically) written words. The sponsor of the Act used as his principal justification for the Act a compilation of graphic sexually oriented visual images. But the Act is not so focused. In covering a broad range of purely "textual" indecency, the Act is apparently unique among indecency laws. Indeed, even in the obscenity context, there have been few, if any, prosecutions in the last four decades for distributing purely written material. See Final Report, Attorney General's Commission on Pornography at 84 (1986). Notwithstanding the attenuated relationship between written words and the concerns underlying the Act's indecency provisions, the Act's inclusion of written words accounts for a large portion of the protected speech that is prohibited, restricted or chilled by the Act's sweeping restrictions. Fourth, at least in part because Congress did not collect information about how online communications work and only haphazardly reviewed the content on the Internet, the Act does not accomplish or even significantly further the ostensible goal of limiting access by persons under 18 to "indecent" or "patently offensive" images. A high percentage of sexual content on the Internet originates outside of the United States, and it is not possible to prevent that content from being "available" in the United States by imposing a source ban. Foreign content providers may not know of, or care about, the Act's prohibitions, and the legal and practical ability of the U.S. Department of Justice to enforce the Act outside the United States is questionable. As to the most egregious materials -- obscenity and child pornography -- those posting such materials online are already violating other criminal laws, and it is unlikely the "indecency" prohibitions will deter them any more. All this boils down to a simple conclusion: the infringement on First Amendment rights imposed by the Act far outweighs any marginal advancement of the government's legitimate interest. See Elrod, 427 U.S. at 361, 363. As in Bolger, "a restriction of this scope is more extensive than the Constitution permits." 463 U.S. at 73. II. THE ACT IS SUBSTANTIALLY AND FATALLY OVERBROAD. A. The Subsection (d) "Display" Prohibition Is Grossly Overbroad Because, in Nearly Every Application, It Bans or Severely Burdens Speech That Is Constitutionally Protected for Adults. As explained in Point I, the challenged provisions of the Act cannot withstand strict scrutiny. Those provisions effectively ban a broad category of speech that is constitutionally protected for adults, because there is no practical way of communicating that speech via cyberspace to adults without also making it "available to" persons under 18, in violation of the subsection (d) "display" provision, and because the means of segregating "adult" materials contemplated in the Act's defenses are simply impossible for most content providers and online services. Where the subsection (e)(5) defenses for providers could be implemented at all, those measures would substantially burden protected speech by, among other things, making it practically impossible for adult users to explore areas of the Internet containing constitutionally protected material (and hence impossible for content providers to reach an otherwise willing adult audience). In many and perhaps most cases, the combination of the Act's broad "display" prohibition and the infeasibility of the statutory defenses will result in the complete removal of constitutionally protected material from cyberspace./*74 In the comparatively few cases in which adult access codes or similar measures might be feasible, the statute will result in many adult users' having reduced access to material they would otherwise have had the ability and desire to see. A statute that restricts this much protected speech is, among other constitutional defects, substantially overbroad. "Far from providing the `breathing space' that `First Amendment freedoms need . . . to survive,'" City of Houston v. Hill, 482 U.S. 451, 466 (1987) (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)), the Act indiscriminately stifles protected speech. Like the laws that were struck down as overbroad in Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987) (invalidating ordinance banning "First Amendment activity" within airport), and Schad v. Mount Ephraim, 452 U.S. 61 (1981) (striking down ban on all live entertainment within town as overbroad), the subsection (d) "display" prohibition is invalid on its face. This case differs from the standard overbreadth challenge, but for reasons that make it unusually obvious that the Act is unconstitutional. In most overbreadth cases, the court must balance the constitutionally permissible applications of the statute against the impermissible ones, in order to judge whether the claimed "`overbreadth [is] not only [] real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'" Massachusetts v. Oakes, 491 U.S. 576, 595 (1989) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). Here, it is a striking understatement to say that subsection (d) reaches a "substantial amount of constitutionally protected conduct," City of Houston v. Hill, 482 U.S. at 458 (quoting Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982) and Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983)), for all the speech the provision covers is constitutionally protected for adults./*75 The Act is not only "susceptible of regular application to protected expression," Hill, 482 U.S. at 467 (emphasis added); it is certain to be so applied. A fortiori, it is fatally overbroad, and therefore "facially invalid." Id./*76 B. The Act Is Also Overbroad Because It Prohibits Speech to All Persons Under 18 Years of Age on the Basis of What Is Inappropriate for Young Children The Act is also substantially overbroad because it bans and restricts speech that is sent or made "available" to persons under 18, see 47 U.S.C. 223(a)(1)(B), (d)(1), without accounting in any way for relevant differences among the different age groups within the prohibited under-18 class. Rather than acknowledging the vast intellectual and emotional differences between seven-year-olds and seventeen- year-olds, the Act erects a total prohibition based on what "community standards" deem inappropriate for very young children. The constitutional defect in this "one-size-fits- all" prohibition is particularly pronounced because of the absence in the Act of any exemption for material with serious literary, political, scientific, or other educational value./*77 Because a great deal of material that might be deemed objectionable for young children would nonetheless be appropriate (indeed, highly valuable) for older minors,/*78 the Act's procrustean age restrictions are substantially overbroad. Just as the Act indiscriminately bans speech appropriate for adults in the name of protecting children, it also bans speech appropriate for high school seniors and college freshmen in the name of protecting elementary schoolchildren./*79 This prohibition most palpably infringes the First Amendment rights of older minors, but it also infringes the rights of persons who would otherwise communicate with them via the Internet./*80 This is not a statute dealing with a narrow type of "adult" speech (such as the "dial-a-porn" services at issue in Sable)./*81 Such material is arguably harmful for all minors (albeit perhaps more harmful for young children than for teenagers). But the open-endedness of the Act's prohibitions of "indecent" and "patently offensive" material, combined with the immense diversity of material on the Internet, ensure that the Act applies to a great deal of material that is arguably harmful for 7-year-olds but is not even arguably harmful for 17-year-olds. Courts interpreting state harmful to minors statutes have recognized the inappropriateness of banning material for all minors merely because it is deemed harmful for younger minors. In American Booksellers v. Webb, 919 F.2d 1493, 1504 (11th Cir. 1990), cert. denied, 500 U.S. 942 (1991), the court of appeals construed a Georgia statute restricting the display of books that on its face made no distinctions among different age groups, to apply only to material that lacked value for older minors. The court concluded that "if any reasonable minor, including a seventeen-year-old, would find serious value," the material was not "`harmful to minors'" for purposes of the statute. Id. at 1504-05; see also American Booksellers Ass'n v. Virginia, 882 F.2d at 127 ("`[I]f a work is found to have serious literary, artistic, political or scientific value for a legitimate minority of normal, older adolescents, then it cannot be said to lack such value for the entire class of juveniles taken as a whole.'") (quoting Commonwealth v. American Booksellers Ass'n, 236 Va. 168, 372 S.E.2d 618, 624 (1988)). Congress's failure here to account for relevant distinctions among minors of different ages--a defect that, because Internet usage by older minors is much greater than by younger minors, mars the Act in a high proportion of its potential applications -- renders the Act substantially overbroad. III. THE SWEEPING PROHIBITION OF PROTECTED SPEECH ON THE INTERNET CANNOT BE SAVED BY ANALOGY TO CASES IN WHICH COURTS HAVE UPHELD LIMITED INDECENCY RESTRICTIONS SHORT OF A BAN, OR BY INVOKING THE STANDARDS OF FIRST AMENDMENT REVIEW GOVERNING BROADCAST MEDIA. As demonstrated in Point I, the Act plainly fails strict scrutiny. The government, however, has sought to defend the Act as nothing more than a simple extension of narrow indecency restrictions courts have approved to other media, and perhaps as sustainable under the more relaxed First Amendment standard applied to the broadcast medium in FCC v. Pacifica. See Deft ACLU Br. at 20-22, 26-27, 30-39. These arguments fail because the Act's restrictions differ dispositively from the indecency restrictions at issue in prior cases, and the Pacifica standard has no application to content regulation of interactive computer services. A. Judicial Decisions Upholding Narrow Indecency Restriction for "Dial-a-Porn," Broadcast Media, and Leased Access Cable Television--None of Which Involved a Total Ban--Are Entirely Inapposite. The decisions cited by the government upholding indecency restrictions for dial-a-porn, leased access cable television, and the broadcast media, provide no support for the Act. None of those cases approved an effective ban on indecent speech. In Pacifica, the Court affirmed an administrative sanction against the broadcaster of "indecent" language imposed pursuant to an FCC rule that was not "`an absolute prohibition'" on use of such language, but "'rather sought to channel it to times of day when children most likely would not be exposed to it.'" Pacifica, 438 U.S. at 733 (quoting 59 F.C.C.2d 892 (1976)). See Sable, 492 U.S. at 127 (observing that Pacifica did not involve a ban); see also Action for Children's Television v. FCC, 58 F.3d 654, 666 (D.C. Cir. 1995) (en banc) (by allowing indecent material to be broadcast during nighttime hours, Congress had adequately "taken into account the First Amendment rights of the very large numbers of adults who wish to view or listen to indecent broadcasts"). Similarly, the post-Sable dial-a- porn restrictions upheld in Dial Information Services Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992), and Information Providers Coalition v. FCC, 928 F.2d 866 (9th Cir. 1991), do not ban indecent speech to adults; they simply require providers to restrict their services to adults who request access. See also Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995) (upholding similar requirement for cable leased access programming), cert. granted, 116 S.Ct. 471 (1995). Thus, none of the cases on which the government relies implicated the core First Amendment principle the Act contravenes: the government may not ban speech that is protected for adults in the name of keeping it away from children. Instead, these decisions hold that government may impose carefully crafted measures to protect children from exposure to indecent speech, provided those measures do not ban or unduly burden adult access to that speech./*82 Although the Act contains a gesture towards the First Amendment by including the subsection (e)(5) defenses, those defenses are impossible to implement in many important areas of online communications. Even where some of the defenses might be implemented, they will substantially burden and dramatically restrict the availability to adults of constitutionally protected material. In the case of broadcast, dial-a-porn, and cable television, the relatively small number of service providers all indisputably had the capacity to comply with the indecency restrictions at issue without also blocking adults from receiving desired communications. See, e.g., Fabulous Assoc., 896 F.2d at 787- 88. As shown above, that approach does not work in cyberspace. The fact that, as the government observes, the Act's defenses would in theory operate something like the dial-a-porn blocking mechanisms does not change the fact that, given the realities of the Internet, the Act is "[i]n effect" a ban. See Virginia v. American Booksellers Ass'n, 484 U.S. 383, 389 (1988)(citing Bolger and Butler). For this reason, the Act's broad prohibitions are unconstitutional for the same reason the commercial dial-a-porn ban at issue in Sable was unconstitutional. B. The Unique First Amendment Standards Governing the Broadcast Media Do Not Apply to Cyberspace. Without seriously disputing that the Act's content- based prohibitions require strict First Amendment scrutiny, the government nonetheless suggests that the Internet should be governed by an unspecified but comparatively relaxed standard of First Amendment review similar to the standard Pacifica adopted for FCC regulation of broadcast indecency. Deft ACLU Br. at 22-23, 26. In Pacifica, the Court upheld the FCC's administrative reprimand of a radio station that aired a satiric monologue entitled "Filthy Words" at two o'clock in the afternoon. The Court based its holding on the "uniquely pervasive" quality of broadcast which, like an "intruder," "confronts the citizen," who cannot protect himself from "unexpected program content" because he is "constantly tuning in and out," and because of the "uniquely accessible" nature of broadcasting to children. Pacifica, 438 U.S. at 748-50. In contrast to a "written message" such as the "Fuck the Draft" jacket in Cohen v. California, 403 U.S. 15 (1971), the monologue as broadcast "could have enlarged a child's vocabulary in an instant." Pacifica, 438 U.S. at 749. This ease of access even to very young children justified a degree of restriction on indecent broadcast expression not permitted on "[o]ther forms of offensive expression" such as books and motions pictures, which "may be withheld from the young without restricting the expression at its source." Id. The Pacifica Court "emphasize[d] the narrowness of [its] holding," noting, among other qualifications, that the Constitution might preclude a "criminal prosecution" even for broadcasting the "Filthy Words" monologue, and that different considerations might apply in the case of a "two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy." Id. at 750./*83 In the 18 years since Pacifica was decided, the Supreme Court has declined repeated invitations to extend the relaxed broadcast standard to any other media. In Bolger, the Court invalidated a ban on mailing unsolicited contraceptive advertisements, distinguishing Pacifica on the ground that "[t]he receipt of mail is far less intrusive and uncontrollable" than broadcast. Id. at 74. Bolger emphasized that "[t]he First Amendment `does not permit the government to prohibit speech as intrusive unless the "captive" audience cannot avoid objectionable speech.'" Id. at 72 (quoting Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 542 (1980)). See also Erznoznik, 422 U.S. at 209; Kovacs v. Cooper, 336 U.S. 77, 86-87 (1949). In Sable, the Court held that the Pacifica rationale should not be extended to commercial telephone communications, noting that Pacifica "relied on the `unique' attributes of broadcasting." Sable, 492 U.S. at 127 (quoting Pacifica). The Court observed that in contrast to "means of expression which the recipient has no meaningful opportunity to avoid, the [telephone] medium requires the listener to take affirmative steps to receive the communication." Id. at 127-28. Unlike broadcasting, "dial-a-porn" communications did not present a captive audience problem: "the message received by one who places a call to a dial-a-porn service is not so invasive or surprising that it prevents an unwilling listener from avoiding exposure to it." Id. at 128; see also Fabulous Assoc., 896 F.2d at 784. Even more recently, the Court firmly and unanimously declined to extend the comparatively lenient First Amendment standards governing broadcasting to cable television. See Turner, 114 S. Ct. at 2456-57. As with other media that have been asserted to resemble broadcast in relevant respects, see, e.g., Turner, 114 S.Ct. at 2457, it is possible to argue that some aspects of online communication resemble some aspects of broadcasting. See Deft ACLU Br. at 26. But a comprehensive appraisal of the technical capabilities and communicative possibilities of cyberspace demonstrates that in relevant respects cyberspace is not like radio or broadcast television. The marked differences between the Internet and the broadcast media, coupled with the Supreme Court's steadfast unwillingness to extend the "sliding scale" approach to reviewing content regulation of any other non- broadcast media, leave no doubt that pleas to extend Pacifica to cyberspace should be rejected. First, the Internet is emphatically not a medium on which individuals lack the power to choose the communications they wish to receive or to protect themselves or their children from unwanted or unexpected speech. Compare Pacifica, 438 U.S. at 748-51. To the contrary, recipients of online communications enjoy a degree of individual control over incoming material that is attainable in few, if any, other media. With the exception of point-to-point e-mail, no information travels online to a particular individual unless the individual requests it./*84 Listservs, newsgroups, chat lines, telnet, ftp, gopher and the World Wide Web all require an affirmative request by the online user prior to the user receiving information on his or her computer screen./*85 Furthermore, when a user makes such an affirmative request it is usually clear what type of content will be delivered. The online medium offers users the ability to exercise control over precisely what information they access. Thus, unlike radio or television, and even more so than with telephone, there is no significant risk that a user will be assaulted with totally unsolicited and undesired content. The expression does not intrude upon the recipient; rather, to an even greater extent than telephone, in cyberspace a recipient must "take affirmative steps to receive the communication." Sable, 492 U.S. at 127-28. Second, online communications require a level of sophistication that militates against fashioning a special, lenient standard of review. Unlike radio and television, online communications are not easily accessible to very young children. At a minimum, recipients need to be able to read in order to execute the commands necessary to access communications. Cf. Pacifica, 438 U.S. at 749-50. Moreover, parents can control their children's access to online expression through a variety of means, including the many user-end screening options discussed above. Given the far greater degree of user control relative to broadcast, and given the relative lack of accessibility to young children, here, as in Bolger, there is no justification for regulating online expression "at its source." See Pacifica, 438 U.S. at 749. Third, unlike broadcasting, cyberspace presents no problem of scarcity./*86 To the contrary, one of its most valuable features is open accessibility to millions of new users at low cost. Cyberspace is not a physical or tangible entity. It is a giant network which interconnects innumerable groups of linked computer networks and personal computers used by individuals. Accordingly, there is no need for government regulation to allow speakers to be heard or to ensure diversity. Compare, e.g., Turner, 114 S.Ct. at 2456- 57. Indeed, these important policy goals are imperilled, not furthered, by content regulation such as that imposed by the Act./*87 In short, cyberspace does not share the "unique" characteristics of broadcast media that have been thought to justify greater-than-usual tolerance for content regulation. C. The Internet's Unmatched Capacity for Furthering the Core Policies of the First Amendment Requires That This Court Apply the Rigorous Standards of Scrutiny Normally Applicable to Content-Based Restrictions. The Supreme Court has frequently observed that, although "the basic principles of freedom of speech and the press . . . do not vary," each medium of communication presents "its own peculiar problems" for purposes of First Amendment analysis. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952) (motion pictures). See also, e.g., Turner, 114 S.Ct. at 2456-57, 2466 (cable TV); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975) (live entertainment). This observation was critical to the Court's approval of relatively lenient First Amendment standards for broadcasting in Red Lion Broadcasting Co. v. FCC, 395 U.S. at 386-87. But the Court's attention to the unique characteristics of certain media has often led it to reaffirm the importance of adhering to the usual rule of rigorous review of speech restrictions. E.g., City of Ladue v. Gilleo, 114 S. Ct. 2038, 2046 (1994) (observing, in the course of striking down an assumedly content-neutral prohibition, that "[r]esidential signs are an unusually cheap and convenient form of communication," "[e]specially for persons of modest means or limited mobility"); Martin v. Struthers, 319 U.S. 141, 146 (1943) ("[d]oor to door distribution of circulars is essential to the poorly financed causes of little people"). Acknowledgement of the already enormous and rapidly growing social importance of interactive computer services requires a similar response here. Indeed, cyberspace's unique and revolutionary capability to facilitate ordinary citizens' ability to communicate and learn is a major reason why online communications should receive the highest level of First Amendment protection./*88 The Free Speech and Press Clauses are based on the simple but important belief "that the ultimate good desired is better reached by free trade in ideas." Abrams v. United States, 250 U.S. at 630 (Holmes, J., dissenting, joined by Brandeis, J.). See Turner, 114 S.Ct. at 2458. Cyberspace has the capacity to further this fundamental constitutional commitment more effectively than any previous medium of communication. By means unforeseeable to the First Amendment's authors, cyberspace offers individual citizens unprecedented opportunities to enjoy in a direct, personal way the freedoms of "speech," "press," "assembl[y]," and "petition." The Internet makes speaking and listening to a wide variety of others cheaper and easier than ever before. Through cyberspace, an individual citizen from her keyboard can reach more people than can any conventional newspaper. Thousands of new personal, professional, political and avocational associations are forged on the Internet every day, many of which link people who would never have had opportunities to communicate before./*89 Many politicians in the United States have already established online links with their constituents, and the process is sure to continue./*90 Cyberspace has already eliminated wealth or political power as the prerequisites to mass communications, and the implications of this historic development will be felt for decades. See generally Owen Fiss, "Symposium: In Search of a New Paradigm," 104 Yale L.J. 1613 (1995). Cyberspace is truly a global electronic marketplace of ideas. Because access is so inexpensive and easy, virtually everyone in the United States has or soon will have access to the Internet and other interactive computer services, making this, by far, the most democratic means of communication ever devised./*91 All that is needed to "enter" cyberspace is a computer, a "modem" or other connection, and simple software. For a relatively modest investment--far less than the cost of purchasing a printing press, newspaper, broadcast station, or cable system -- individuals can make their message available to more people than they could reach if they owned the printing press, newspaper, broadcast station, or cable system. They can electronically communicate their messages to thousands in a fraction of the time and for a fraction of the cost required to leaflet a single city block. It is not even necessary to own a computer to have regular and meaningful access to the Internet./*92 Persons of very modest means now have the ability both to send and to receive information on a scale that until now would have been unattainable even for the wealthy. The Internet has given citizens of modest means power even William Randolph Hearst would have envied. The new interactive computer medium has the power to democratize and diversify the marketplace of ideas. As Congress found, "[t]he Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." Act, 509. More so than any other medium, the interactive computer medium "today stands at the center of an ongoing telecommunications revolution with still undefined potential to affect the way we communicate and develop our intellectual resources." Turner, 114 S.Ct. at 2451. It serves the interests protected and fostered by the First Amendment like no other medium. First Amendment analysis must respect its awesome potential. In sum, this Court should accord to the interactive computer medium the most vigilant protection from government censorship and overreaching. The unparalleled potential of cyberspace to effectuate the core policies of the First Amendment calls for a reaffirmance of our "profound national commitment" to public discourse that is "uninhibited, robust, and wide-open." New York Times v. Sullivan, 376 U.S. at 270. The challenged provisions of the Act, however, represent an indiscriminate and damaging retreat from that commitment, one that reflects an as-yet poor legislative understanding even of the basic operating methods of cyberspace. Those provisions are facially invalid because they abridge far too much protected speech while affording little incremental protection for minors, and threaten to disrupt the rapidly unfolding development of a salutary communications revolution that until now has flourished with a minimum of governmental interference. IV. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR CLAIM THAT THE ACT IS UNCONSTITUTIONALLY VAGUE. Even if the Act could otherwise survive constitutional scrutiny under the First Amendment -- and it cannot -- this Court should nevertheless enjoin its enforcement because it is unconstitutionally vague under the Fifth Amendment. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." Bouie v. City of Columbia, 378 U.S. 347, 351 (1964) (quotations omitted). The Due Process Clause of the Fifth Amendment "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983) (holding criminal statute facially invalid as unconstitutionally vague)./*93 And where -- as here -- the enactment threatens expression protected by the First Amendment, the enactment must provide more notice and allow less discretion than for other activities. "Where a statute's literal scope . . . is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts." Smith v. Goguen, 415 U.S. 566, 573 (1974). The particular evil of vague criminal prohibitions applied to expressive activity is that the uncertainty causes individuals to "steer far wider of the unlawful zone," Speiser v. Randall, 357 U.S. 513, 526 (1958), than if the boundaries were "clearly marked." Baggett v. Bullit, 377 U.S. 360, 371 (1964). "Free speech may not be so inhibited." Id. (citing cases)./*94 The Act is unconstitutionally vague in at least two fundamental respects. First, no ordinary person could determine with reasonable certainty which communications Congress sought to proscribe in the Act. The terms "indecent" and "patently offensive as measured by contemporary community standards" are hopelessly vague./*95 Second, the defenses established by the Act, especially as applied to content providers who do not charge for access to their speech and those who host Web pages and other online sites, are also fatally vague. Plaintiffs, their members, and their subscribers, patrons, and customers are forced to guess at whether their online expressive activities may give rise to criminal prosecution. These law- abiding citizens take the duty to obey the law, and the prospect of criminal penalties, seriously. They will self- censor a great deal of protected speech in order to avoid potential criminal prosecution. The Act thus impermissibly chills constitutionally protected expression. A. The Terms "Indecent" and "Patently Offensive As Measured By Contemporary Community Standards" Are Unconstitutionally Vague. Both "indecent" and "patently offensive" are entirely subjective terms; there is therefore no objective yardstick for measuring the boundaries of the Act's proscriptions./*96 As the Supreme Court observed in striking down a California statute that outlawed "offensive conduct" as applied to an individual who wore a jacket displaying the words "Fuck the Draft": How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. Cohen, 403 U.S. at 25 (emphasis added). The government maintains that the Act's only design is to control children's access to "what is colloquially referred to as pornography." Deft ACLU Br. at 21. That design certainly cannot be gleaned from the text of the Act, or from its legislative history. Congress expressly stated that it intended to adopt the FCC "patently offensive" standard applied in Pacifica to censure George Carlin's "Seven Dirty Words" monologue. Conf. Rep. at 188-89. Although that monologue could be described as "'vulgar,' 'offensive,' and 'shocking,'" Pacifica, 438 U.S. at 747, it could not be described as "pornography." The obvious disconnect between the government's attempt to describe the Act as applying only to "pornography," on the one hand, and the much broader text of the Act and Congress's much broader explanation of its understanding, highlights the fatal vagueness of the key statutory terms. Even if a person of "common intelligence" could reasonably discern what Congress meant by "indecent" and "patently offensive" in the abstract, that understanding is of little use because "indecency is largely a function of context," Pacifica, 438 U.S. at 742, and the "patently offensive" standard of 233(d)(1)(B), by its terms, demands that offensiveness be judged "in context."/*97 The context is, in turn, a function of the medium. See Pacifica, 438 U.S. at 748; Sable, 492 U.S. at 127-28. Congress clearly understood and intended to adopt this principle in establishing those standards, noting that the meaning of indecency may vary "depending on the communications medium to which it has been applied." Conf. Report at 188. But the Act provides no guidance as to whether a particular communication is "indecent" or "patently offensive" in the "context" of the online computer medium. The Internet bears no resemblance to broadcast television or telephone communications -- the only other contexts in which the FCC has applied the terms./*98 The online medium is not thrust upon unwilling listeners, as with broadcast. Moreover, the immensely broad and diverse range of communications available over the online medium is totally different from other mediums. In addition, there is no bottleneck control over content and no significant barrier to entry into the marketplace of ideas, and unlike broadcast, cable and telephone, the online computer medium has been virtually unregulated. As a result, what might be viewed as "intolerable" in other mediums could well be viewed as tolerable in the cyberspace medium. Cf. Pacifica, 438 U.S. at 747 (noting that "[w]ords that are commonplace in one setting are shocking in another"). However, the cyberspace medium is so new, the average person cannot know the boundaries of what will or will not be deemed "indecent" or "patently offensive" in this new medium. Making the "patent offensiveness" of the communication depend upon "contemporary community standards" exacerbates the vagueness of this critical statutory term. Both of the FCC tests from which the Act's language was borrowed expressly tied the community standard to the medium at issue. Although the legislative history states that Congress intended for the Act to incorporate those tests, the text of the Act (unlike the text of the FCC tests for those other mediums) does not expressly tie the community standard to the cyberspace medium, leaving the ordinary person to guess as to what standards of "offensiveness" will be applied -- what is tolerated and deemed appropriate in the "cyberspace community" or in the community at large?/*99 Even if an ordinary person could determine whether the "cyberspace community" or the larger community's standards would govern, the statutory text fails to specify which geographic aspect of that community is relevant. In the "obscenity" context, it is settled that the relevant community is the local community in which the jury sits. See, e.g., Hamling v. United States, 418 U.S. 87 (1974) (obscenity); United States v. Thomas, 1996 U.S. App. LEXIS 1069 (6th Cir. Jan. 29, 1996) (obscenity in computer context). See also, e.g., American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990) (state "harmful to minors" statute). The Act uses the terms "obscene" and "indecent" in the same prohibitory clause, which would lead an ordinary person to understand that the same community standard applied to both terms. See 223(a)(1)(B). But the Conference Report expressly states that the Act is "intended to establish a uniform national standard of content regulation." Conf. Report at 191 (emphasis added). This apparent inconsistency between text and current caselaw, on the one hand, and legislative history on the other, alone creates a fatal ambiguity in the Act: how can a reasonable person be expected to determine which community standard, local or national, will apply when judging the appropriateness of the communications he or she is disseminating? Furthermore, even if it could be determined whether Congress intended a "local" or "national" standard, either approach would involve ambiguities, when applied to this new medium, that would make it impossible for "ordinary people [to] understand what conduct is prohibited." Kolender, 461 U.S. at 357. If a local community standard applies, it is impossible for the vast majority of online speakers to determine what standard will govern the lawfulness of their speech because they do not know, and cannot control, who receives the speech or the geographical location it reaches. Communications posted anywhere on the Internet are available throughout the United States. A speaker cannot possibly have knowledge (or reason to know) the local standards of offensiveness in each of the local communities in which his or her speech will be available. Unlike in Sable, where the Court found that dial-a-porn services could limit their messages to the communities they chose to serve, 492 U.S. at 125, local community standards imposed on computer online communications would "place message senders in a 'double bind' by compelling them to tailor all their messages to the least tolerant community." Id. at 124./*100 Cf. Thomas, supra, at *23-*26 (leaving open question whether First Amendment requires new definition of "community" in context of obscenity prosecution involving computer transmissions). If, on the other hand, Congress intended to apply a "national" community standard -- a standard nowhere indicated in the text of the Act -- it would be impossible for any speaker to determine with reasonable certainty what that standard is. The FCC, in interpreting and applying indecency in the broadcast medium according to a "nonlocal" standard, has stated that its definition of indecency "does not address a particular geographic area, but relies instead on the expertise of Commissioners drawing on their knowledge of the views of the average viewer or listener as well as their general expertise in broadcast matters." In re Sagittarius Broadcasting Corp., 7 F.C.C.R. at 6876. There is no "expertise" that can be brought to bear here; the FCC has no enforcement authority, so even if it could develop a common and consistent view of "offensiveness" in the national cyberspace community, it would not, even over time, provide meaningful guidelines for speakers. The Act will be enforced on an ad hoc basis by prosecutors and juries throughout the country. It is difficult to comprehend how a local jury could meaningfully apply a "national community" standard of "offensiveness," or how speakers could know what local juries might deem "patently offensive" nationally. Congress created more confusion with regard to another fundamental issue -- scienter. The Conference Report suggests that Congress understood the "patently offensiveness inquiry" to require "the intention to be patently offensive." Conf. Report at 189 (emphasis added). But it is entirely unclear what that "intention" would entail, since much of the material Congress sought to suppress is certainly not intended to offend the viewer, but rather to titillate. No such scienter requirement is found in the text of the Act or in the FCC standard Congress adopted. Again, a speaker is left to guess whether an "intent" requirement is or is not sub silentio imbedded in the statutory terms, and what exactly that requirement might be. This also creates a serious problem for plaintiffs and other speakers./*101 The inevitable result of these ambiguities, particularly given the severe criminal penalties for a wrong guess, is that speakers will "steer far wider of the unlawful zone," Speiser v. Randall, 357 U.S. at 526, and much constitutionally protected expression will be suppressed. The uncertainty of the coverage of the Act, and its attendant chilling effect, is forcefully evidenced in the accompanying declarations. The declarants -- libraries, booksellers, publishers, universities, writers, editors and other content providers -- post material of serious artistic, literary, scientific, educational and informational value. The declarants provide information about medical, literary, artistic, cultural, political and scientific issues. Given the ambiguity in the Act, the University of Pennsylvania Libraries risks criminal prosecution for posting academic material directly related, and essential, to courses in abnormal psychology, sexuality, history and literature./*102 The Fort Vancouver Regional Library in Washington State fears prosecution for providing patrons access to full text articles in such mainstream publications as Cosmopolitan./*103 Booksellers throughout the country who offer links to the World Wide Web site of Random House and an excerpt from the national best-seller, Primary Colors, face criminal prosecution./*104 Members of the Health Sciences Libraries Consortium fear criminal prosecution for providing detailed, comprehensive information about the AIDS virus./*105 Public interest groups such as Media Access Project and Center for Democracy and Technology cannot post information educating the public about their mission without risk of prosecution./*106 If the Act is not enjoined, these materials may have to be removed from the Internet. Contrary to the government's suggestion, and Congress' apparent belief, see Conf. Report at 189, the Supreme Court has never upheld the term "indecency" or the phrase "patently offensive as measured by contemporary community standards" against a vagueness attack. That question was not addressed in either Pacifica or Sable, the two cases relied upon by the government. In Sable, the Court struck down Congress's ban on indecent dial-a-porn telephone communications on First Amendment grounds, without intimating any view on the constitutionality of the standard applied by the FCC under the Fifth Amendment. 492 U.S. at 131. Whether that standard was vague was irrelevant to its determination. Nor did the Court uphold the "indecency" standard against a vagueness challenge in Pacifica. The Court stressed that it was examining only "whether the [FCC] has the authority to proscribe this particular broadcast." 438 U.S. at 742 (emphasis added). The Court ruled only as to the legitimacy of the FCC's determination of the "indecency" of that single broadcast, not the legitimacy of the standard in general. Thus, the Court declined to address the plaintiff's First Amendment overbreadth argument. Id. at 743. Even if the Court's ruling in Pacifica were misread as having ruled that the FCC broadcast indecency standard is not vague, the decision would not govern here. As the Court repeatedly stressed, the indecency standard before the Court applied solely to the broadcast medium, a medium with "unique" characteristics. Id. at 749, 750. The Court's view of the agency's construction of that term thus has no relevance to an uninterpreted, unguided use of the term as applied to an entirely different medium. More importantly, the Pacifica Court expressly disavowed any suggestion that its ruling would apply in the context of a criminal sanction. 438 U.S. at 750. To the contrary, the Court has consistently held that, "where a statute imposes criminal penalties, the standard of certainty is higher." Kolender, 461 U.S. at 358 n.8. Accord, e.g., Winters v. New York, 333 U.S. 507, 515 (1948) ("The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement."). Thus, even if Pacifica could be understood to rule that the indecency standard is not vague in the civil context -- which it cannot -- that holding would not apply in this criminal context. The government's defense of "indecent" and "patently offensive by contemporary community standards" essentially boils down to an admonition that plaintiffs should trust government prosecutors. It is precisely for this reason that the Act is unconstitutionally vague: the Fifth Amendment protects speakers from being subjected to the unguided discretion of criminal prosecutors. The Act does not provide explicit standards for enforcement authorities, and the ambiguity of the critical terms "encourages arbitrary and erratic arrests and convictions." Papachristou v. Jacksonville, 405 U.S. at 162. Local prosecutors are free to define the category of prohibited speech as they see fit, which would permit selective application against disfavored speakers. In the case of Internet communications, every local prosecutor has jurisdiction to prosecute any speaker, no matter where that speaker is located, because of the ubiquity of the communications links. Cf. Thomas, supra, at *16-*19. Consequently, the most aggressive prosecutor in the least tolerant community could prosecute virtually anything on the Internet. The Act thus "'furnishes a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.'" Kolender v. Lawson, 461 U.S. at 360 (quoting Papachristou, 405 U.S. at 170 (internal quotes omitted)). For these reasons, plaintiffs are likely to succeed on the merits of their claim that the challenged provisions of the Act are unconstitutionally vague in violation of the Fifth Amendment. B. The Act's Defenses Are Unconstitutionally Vague. As noted above, for content-providers who do not charge for their speech -- the individual or library, for example -- the verified credit card/ID defenses (47 U.S.C. 223(e)(5)(B)) are irrelevant because, as a practical matter, they cannot be utilized. For these speakers, the only possible defense is the vaguely worded "good faith" defense. Congress has provided no guidance whatsoever regarding what might or might not constitute "good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors." Id. 223(e)(5)(A)./*107 To the contrary, while permitting the FCC to opine as to what measures "might" satisfy that defense, Congress expressly and emphatically stated that the FCC's views would constitute nothing more than "evidence of good faith efforts." Id.; Conf. Rep. at 190-91. If Congress did not anticipate that the FCC could definitively articulate measures that would satisfy the defense, persons "of common intelligence must necessarily guess at [the defense's] meaning and differ as to its application." Roberts v. United States Jaycees, 468 U.S. at 629 (internal quotation omitted). The inevitable result is that speakers who do not charge a fee for access to their speech cannot have reasonable assurance that the steps they take will constitute a defense./*108 As a result of the patent ambiguities in the Act, and the draconian penalties for a wrong guess, these speakers will "steer far wider of the unlawful zone," Speiser v. Randall, 357 U.S. at 526, than if the boundaries were "clearly marked." Baggett v. Bullit, 377 U.S. at 371./*109 Even as to those defenses theoretically available to fee-charging content-providers, there are significant ambiguities. For example, the Act establishes an absolute defense to posting indecent material "in a manner available to a person under 18 years of age," 47 U.S.C. 223(d)(1)(B), if the defendant "restricted access . . . by requiring use of a verified credit card." Id. 223(e)(5)(B). But nowhere is the nature of the required "verification" described./*110 Plaintiffs believe the provision must be construed to require no more than the type of "verification" performed by any retail store. But plaintiffs and their members have a legitimate concern that individual prosecutors (or juries) may construe the defense to require a "verification" somehow tied to the cardholder's age (or, even worse, to the card user's age)./*111 Such a requirement would place an impossible burden on content providers, since there is no face-to-face contact between the provider and the recipient of the message and, typically, no papers or ID documents are exchanged. Another implacable ambiguity in the Act arises for those services that host Web pages or other online sites for content-providers, without exercising any control over content, but nonetheless providing the computer facility at which the content physically resides and from which a recipient obtains access to the content. Online service providers, such as plaintiffs AOL and Prodigy, and Internet service providers, such as plaintiffs Netcom and OpNet, offer extensive services of this kind. It is entirely unclear whether such services might themselves be deemed to "display" -- in the sense of "post" -- content from the hosted Web sites under 223(d)(1)(B) because the communications reside on their computers./*112 And, if they are so deemed, it is equally unclear whether such services can invoke the "access provider" defenses. The ambiguity arises, in part, because while the services may not be considered to "solely . . . . provid[e] access or connection to or from a facility . . . not under [their] control," their role clearly "does not include the creation of the content of the communication." 223(e)(1). The Conference Report indicates that the access provider defenses must be "construed broadly to avoid . . . a regime of vicarious liability" and are "designed to target the criminal penalties of new sections 223(a) and (d) at content providers, rather than entities that simply offer general access to the Internet and other online content." Conf. Rep. at 190. But unless and until the access provider defenses are broadly and definitively construed, the uncertainty regarding the scope of those defenses is another reason for preliminarily enjoining enforcement of the Act./*113 V. THE IRREPARABLE HARM TO PLAINTIFFS, THEIR MEMBERS, AND THEIR SUBSCRIBERS, PATRONS, AND CUSTOMERS FAR OUTWEIGHS ANY HARM TO THE GOVERNMENT IF AN INJUNCTION ISSUES, AND THE PUBLIC INTEREST FAVORS INJUNCTIVE RELIEF. Deprivation of First Amendment freedoms, even for minimal periods of time, necessarily and always constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied, 493 U.S. 848 (1989) (quoting Elrod and noting that this principle is "well-established")./*114 "'[A] chilling effect on free expression'" is a such a deprivation, and is all that plaintiffs must show to establish irreparable harm. Hohe, 868 F.2d at 73 (quoting Dombrowski v. Pfister, 380 U.S. 479, 487 (1965)). Plaintiffs, their members, and their subscribers, patrons, and customers regularly engage in constitutionally protected expressive activities that they reasonably fear subject them to criminal liability under the Act. See, e.g., Croneberger Dec., Tab 13, Ex. B (research study on Pornography located on web site of Carnegie Library of Pittsburgh); Hammer Dec., Tab 20, Ex. A, B (Cosmopolitan article summarizing research on sexual orgasms located on web site of Fort Vancouver Regional Library); Krug Dec., Tab 23, Ex. C, D, E (examples of art, medical and cultural information located on Internet sites of libraries); Mitchell Dec., Tab 25, Ex. C, D (examples of articles located on Internet site of HotWired magazine); Mosher Dec., Tab 26, Ex. A, B, C, D (examples of academic materials on sexuality, psychological disorders, and history located on Internet site of University of Pennsylvania libraries); Scorza Dec., Tab 28, Ex. A, B (examples of medical information located on Internet site of Health Sciences Library Consortium); Teicher Dec., Tab 33, Ex. B, C (examples of book excerpts located on Internet sites of bookstores and publishers); Wolf Dec., Tab 39, Ex. B, C (examples of magazine articles on Internet site of HotWired). This reasonable fear of criminal liability, and the consequent threat of criminal prosecution, is currently chilling the exercise of their First Amendment rights. See, e.g., Hammer Dec. 7, Tab 20 (stating that "[b]ecause of the passage of the Communications Decency Act of 1996, the library has decided to refrain, at least temporarily, from making its web site available directly to the public"); Krug Dec. 15, Tab 23 (stating that "[a]t least one library that I am aware of has removed forty titles from its card catalog in direct response to the Act"); Wheaton Dec., Tab 38, Ex. A 11 ("I have now had my web space taken away by its owner provider due to his fear of ramifications of the CDA")./*115 The public has a substantial, constitutionally protected interest in having access to a robust, uninhibited flow of constitutionally protected speech. Virginia Bd. of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976). This interest is severely damaged by the Act. Although the public's interest in protecting children from communications that would be inappropriate for them is also substantial, that interest is -- at best -- only marginally advanced by the provisions plaintiffs ask this Court to enjoin. The damage to constitutionally protected expression that has already occurred, and the further damage that will occur if defendants are not enjoined, is incalculable. Substantial quantities of constitutionally protected speech are being and will continue to be suppressed across the Nation. The concomitant negative impact on the burgeoning medium for interactive computer services will be substantial. Entry of the relief requested, pending final resolution of the merits, will cause defendants no significant harm, especially because there are other criminal statutes (including this Act's application to "obscene" communications) that prohibit the communications they claim are the principal focus of the Act. Any delay in entry of relief, however, perpetuates and compounds the damage to plaintiffs' First Amendment rights and the First Amendment rights of millions of adults to send and receive communications that are indisputably constitutionally protected for them. CONCLUSION For the foregoing reasons, preliminary injunctive relief against enforcement of 223(a)(1)(B)(ii), 223(a)(2) and 223(d) of the Act is essential and amply justified. Respectfully submitted, _____________________________ Bruce J. Ennis, Jr. Donald B. Verrilli, Jr. Ann M. Kappler John B. Morris, Jr. JENNER & BLOCK 601 Thirteenth Street, N.W. Washington, D.C. 20005 (202) 639-6000 ____________________________ Ronald P. Schiller (Atty ID 41357) David L. Weinreb (Atty ID 75557) PIPER & MARBURY, L.L.P. 3400 Two Logan Square 18th & Arch Streets Philadelphia, PA 19103 (215) 656-3365 COUNSEL FOR ALL PLAINTIFFS Date: March 1, 1996 Ellen M. Kirsh William W. Burrington America Online, Inc. COUNSEL FOR AMERICA ONLINE, INC. Richard M. Schmidt, Jr. Allan R. Adler Cohn and Marks COUNSEL FOR AMERICAN SOCIETY OF NEWSPAPER EDITORS Bruce Rich Weil, Gotschal & Manges COUNSEL FOR ASSOCIATION OF AMERICAN PUBLISHERS, INC. James Wheaton First Amendment Project COUNSEL FOR ASSOCIATION OF PUBLISHERS, EDITORS AND WRITERS Jerry Berman Center for Democracy and Technology Elliot M. Mincberg Jill Lesser People for the American Way Andrew J. Schwartzman Media Access Project COUNSEL FOR CITIZENS INTERNET EMPOWERMENT COALITION Ronald Plesser Jim Halpert Piper & Marbury COUNSEL FOR COMMERCIAL INTERNET EXCHANGE ASSOCIATION Steve Heaton Compuserve Incorporated COUNSEL FOR COMPUSERVE INCORPORATED Thomas W. Burt Microsoft Corporation COUNSEL FOR MICROSOFT CORPORATION AND THE MICROSOFT NETWORK, L.L.C. Robert P. Taylor Megan W. Pierson Melissa A. Burke Pillsbury, Madison & Sutro COUNSEL FOR NETCOM ON-LINE COMMUNICATIONS SERVICE, INC. Rene Milam Newspaper Association of America COUNSEL FOR NEWSPAPER ASSOCIATION OF AMERICA Marc Jacobson Prodigy Services Company Robert J. Butler Clifford M. Sloan Wiley, Rein & Fielding COUNSEL FOR PRODIGY SERVICES COMPANY Bruce W. Sanford Henry S. Hoberman Robert D. Lystad Baker & Hostetler COUNSEL FOR SOCIETY OF PROFESSIONAL JOURNALISTS Michael Traynor John W. Crittenden Kathryn M. Wheble Cooley, Godward, Castro, Huddleson & Tatum COUNSEL FOR HOTWIRED VENTURES LLC AND WIRED VENTURES, LTD. FOOTNOTES 1. Plaintiffs include American Library Association, Inc., America Online, Inc., American Booksellers Association, Inc., American Booksellers Foundation for Free Expression, American Society of Newspaper Editors, Apple Computer, Inc., Association of American Publishers, Inc., Association of Publishers, Editors and Writers, Citizens Internet Empowerment Coalition, Commercial Internet eXchange Association, CompuServe Incorporated, Families Against Internet Censorship, Freedom to Read Foundation, Inc., Hotwired Ventures LLC, Interactive Services Association, Microsoft Corporation, The Microsoft Network, L.L.C., NETCOM On-line Communications Service, Inc., Newspaper Association of America, OpNet, Inc., Prodigy Services Company, Society of Professional Journalists, and Wired Ventures, Ltd. 2. Title V of the Telecommunications Act of 1996. Provisions of the Act that are to be codified will usually be cited only by their future U.S. Code citation. 3. A more comprehensive description of the Internet and other interactive computer services, the way they function, and how they are utilized, can be found in paragraphs 31 through 62 of the Complaint, and in the Declaration of Vinton G. Cerf, Tab 11, Ex. A (detailing history and development of the Internet). Cerf, who has been called the "father of the Internet," co-designed the communications protocols on which the Internet is based. Declarations, statements and affidavits are exhibits to ALA Plaintiffs' Motion for a Preliminary Injunction, Tabs 1- 39. The declarations and affidavits have been arranged alphabetically by the last name of the declarant. Each declaration also may include exhibits, labeled Exhibits A, B, C, etc. A complete list of the declarations and affidavits is included in the Motion and in an Appendix to this Memorandum Of Law. Thus, a citation to Doe Dec. 3, Tab 4, Ex. A would be a citation to Exhibit A of the declaration of John Doe, located at Tab 4 of the exhibits to the Motion for Preliminary Injunction. 4. Technically, the "Internet" is only the largest of this network of interconnected networks, but popularly the term "Internet" is now used to refer to all of these networks collectively. This brief uses the term "Internet" in the broader, popular manner to refer to all of the interconnected networks. In addition to these networks, there are other computer services, networks, and networks-of-networks that are not interconnected to the Internet. Although the bulk of analysis in this brief focuses on the Internet, the Communications Decency Act equally applies to these other services and networks, and most of the same constitutional concerns are raised for those services and networks. 5. Berners-Lee Dec. 11, Tab 4; Cady Dec. 11, Tab 10. 6. Collet Dec. 4, Tab 12. 7. Berners-Lee Dec. 11, Tab 4; Duvall Dec. 6, Tab 14; Smith Dec. 5, Tab 30; Butterworth Dec. 3, Tab 9. 8. Francis Dec. 2, Tab 16. 9. Mosher Dec. 4-5, Tab 26; Boiss Dec. 5, 8, Tab 6. 10. Krug Dec. 4, Tab 23. 11. Weisberg Dec. 4, Tab 36; Collet Dec. 3, Tab 12; Francis Dec. 2, Tab 16. 12. Burke Dec. 3-4, Tab 8; Butterworth Dec. 2-4, Tab 9; Stonesifer Dec. 2-3, Tab 32; Jacobson Dec. 2-3, Tab 21. 13. Bradner Dec. 5, 7, 9, Tab 7; Collet Dec. 10, Tab 12; Cady Dec. 12, 23, 29, Tab 10. 14. Cady Dec. 6-8, Tab 10; Francis Dec. 5, Tab 16. 15. Bradner Dec. 6, Tab 7; Cady Dec. 14, Tab 10. 16. Bradner Dec. 3-4, Tab 7; Collet Dec. 6-11, Tab 12; Cady Dec. 15-20, Tab 10; Francis Dec. 5, Tab 16. 17. Bradner Dec. 8, Tab 7; Cady Dec. 12, 22-26, Tab 10; Burke Dec. 8, Tab 8; Butterworth Dec. 6, Tab 9; Jacobson Dec. 2, Tab 21. 18. Cady Dec. 3, Tab 10. 19. The World Wide Web is discussed extensively by Timothy Berners-Lee, who co-invented the Web and who heads the World Wide Web Consortium. Berners-Lee Dec. 1-18, Tab 7. Other methods use "ftp" (or file transfer protocol) or a program and format named "gopher." 20. Berners-Lee Dec. 4, 6, 9, 13, Tab 4; Cady Dec. 34-36, Tab 10. 21. Cady Dec. 6, 7, 12, 14, 15, 31, 35, 39, Tab 10; Stonesifer Dec. 7, Tab 32. 22. Berners-Lee Dec. 4, 9, Tab 4; Cady Dec. 14-15, 34-39, Tab 10. 23. Berners-Lee Dec. 4, 9, 11, Tab 4. 24. Cady Dec. 36, 38, 39, Tab 10. 25. Sending obscenity and child pornography by computer is prohibited by federal criminal statutes. See 18 U.S.C. 2251-52, 2256-57; 28 U.S.C. 1464-65; United States v. Thomas, 1996 U.S. App. LEXIS 1069 (6th Cir. Jan. 29, 1996) (upholding convictions under 1464 and 1465 for transporting obscene materials by means of computer bulletin board service). See also Act, Section 507 (amending obscenity laws to apply to interactive computer services). Plaintiffs do not challenge the constitutionality of 47 U.S.C. 223(a)(1)(B)(ii), 223(a)(2), and 223(d) to the extent they prohibit the transmission of communications that are obscene or constitute child pornography. 26. "Telecommunications device" is defined to exclude an "interactive computer service," 47 U.S.C. 223(h)(1)(B), but would apparently include a modem used for private e-mail communications. 27. Pursuant to 223(a)(2), it is also a crime knowingly to provide use of a "telecommunications facility" that is used to violate 223(a)(1)(B). 28. See FCC v. Pacifica Found., 438 U.S. 726, 741 n.16 (1978). That is a significant problem for some plaintiffs, including universities with freshmen under the age of eighteen. See Mosher Dec. 6, 10, Tab 26; Boiss Dec. 8, Tab 6. 29. "Interactive computer service" is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C. 223(h)(2) referring to 47 U.S.C. 230(e)(2). 30. It is a separate criminal offense knowingly to make available a facility that is used to violate 223(d)(1). 223(d)(2). 31. Cf. Miller, 413 U.S. at 24. State "harmful to minors" statutes -- which the Conference Committee specifically rejected as a model, see Joint Explanatory Statement of the Committee of Conference for Title V, Communications Decency Act of 1996 at 189 (hereinafter "Conf. Rep."), attached as Exhibit 2 to Defendant's Opposition to Plaintiffs' Motion for a Temporary Restraining Order in the ACLU case, No. 96-963 ("Deft ACLU Br."), do typically exempt materials with serious value. 32. 438 U.S. at 745 (plurality op. of Stevens, J.) (describing the words at issue in the Carlin monologue as "patently offensive words dealing with sex and excretion"). 33. Conf. Rep. at 188. 34. See also, e.g., 141 Cong. Rec. S8341 (June 14, 1995) (Sen. Leahy) ("works of fiction, ranging from `Lady Chatterly's Lover' to Newt Gingrich's science fiction novel `1945,' which contains some steamy scenes, could not be put out on the Internet because of the risk that a minor might download it"). In fact, titles and excerpts of popular articles or books located on the Internet do contain the "seven dirty words." See Croneberger Dec. 5, Tab 13 (titles containing expletives); Hammer Dec. 5, Tab 20 (same); Krug Dec. 8, 13, Tab 23 (same); Teicher Dec., Tab 33, Ex. B (excerpt from number one bestseller Primary Colors, including expletives); Shelkrot Dec. 4, Tab 29. 35. For a description of content on the Internet that could be deemed "indecent" or "patently offensive" for minors, see Complaint, 64-79. 36. Communities across the country have banned or sought to ban classic works of literature, such as Of Mice and Men by John Steinbeck, As I Lay Dying by William Faulkner, The Adventures of Huckleberry Finn and The Adventures of Tom Sawyer by Mark Twain, Catcher in the Rye by J.D. Salinger, I Know Why The Caged Bird Sings by Maya Angelou, as "indecent" for minors. See Krug Dec. 7, Tab 23; see also Guttenberg Dec. 11 and Ex. Q, Tab 19 (detailing the list of books published by Bantam Doubleday Dell Publishing Group that have been banned somewhere in the United States in the last three years, including Silas Marner by George Eliot, Are You There, God? It's Me, Margaret by Judy Blume, The Great Santini by Pat Conroy and The Black Marble by Joseph Wambaugh). See Also Action for Children's Television v. FCC, 852 F.2d 1332, 1340 n.13 (D.C. Cir. 1988) (noting that portions of the works of James Joyce, D.H. Lawrence, James Baldwin, and Frank Harris could be deemed "indecent"). Even the American Heritage Dictionary and parts of the Bible have been attacked as being "indecent" for minors. Krug Dec. 7, Tab 23; Hammer Dec. 4, Tab 20; Guttenberg Dec., Tab 19, Ex. Q. 37. See Hammer Dec., Tab 20, Ex. A, B (Cosmopolitan article summarizing research on sexual orgasms located on web site of Fort Vancouver Regional Library); Krug Dec., Tab 23, Ex. C, D, E (examples of art, medical and cultural information located on Internet sites of libraries); Mitchell Dec., Tab 25, Ex. C, D (examples of articles located on Internet site of HotWired magazine); Mosher Dec., Tab 26, Ex. A, B, C, D (examples of academic materials on sexuality, psychological disorders, and history located on Internet site of University of Pennsylvania libraries); Scorza Dec., Tab 28, Ex. A, B (examples of medical information located on Internet site of Health Sciences Library Consortium); Teicher Dec., Tab 33, Ex. B, C (examples of book excerpts located on Internet sites of bookstores and publishers); Wolf Dec., Tab 39, Ex. B, C (examples of magazine articles on Internet site of HotWired). 38. See Deft. ACLU Br. at 11 n.7, and Exhibit 9 thereto. 39. Croneberger Dec. 3, 6, and Ex. B, at Tab 13. 40. The government also relies on the Final Report of the Attorney General's Commission On Pornography (1986). See Deft ACLU Br. at 28 n.14. That report itself contains page after page of descriptions of graphic sexual acts that could be deemed indecent or patently offensive. Apparently, it would be a felony to put that government report online. 41. Bradner Dec. 5, 7, 9, Tab 7; Berners-Lee Dec. 8, 13, Tab 4. 42. Both sponsors of the Act expressly acknowledged as much. See 141 Cong. Rec. S8090 (June 9, 1995), 141 Cong. Rec. S8330, S8333 (June 14, 1995); id. at S9771 (July 12, 1995) (Senator Exon); 141 Cong. Rec. S8333 (June 14, 1995) (Senator Coats). The Department of Justice shared that view, and expressed serious reservations about the constitutionality of the bill precisely because it threatened to deprive adults of access to speech that is constitutionally protected for them. See Leahy Dec. 11, 17, Tab 24. 43. If "verified" means only verification that a card bearing the number given was issued and is still valid, most speakers who charge for their speech could probably rely on the "verified credit card" defense. However, if "verified" means verification that the card was issued to a person who was 18 or older when the card was issued, or who would be 18 at the time the card was used, or verification that the person using the card, as opposed to the cardholder, was 18 or older, it would in many cases be impossible, and in all cases extremely burdensome and expensive, to obtain the requisite verification. Berners-Lee Dec. 15, 16, Tab 4. The ambiguity concerning the meaning of "verified" is another reason why the Act is unconstitutionally vague. See Point IV, infra. 44. See Bradner Dec. 5, 7, 9, 10, Tab 7; Cady Dec. 3, 14, 20, 29, Tab 10; Collet Dec. 10, Tab 12; Croneberger Dec. 8, Tab 13; Geiman Dec. 6, Tab 17; Grenquist Dec. 11, Tab 18; Hammer Dec. 8, Tab 20; Krug Dec. 14, Tab 23; Mitchell Dec. 8, Tab 25; Teicher Dec. 10, Tab 33; Wolf Dec. 7, Tab 39. 45. Bradner Dec. 5, 7, 9, Tab 7; Collet Dec. 10, Tab 12; Cady Dec. 3, 7-8, 14, 20, 23, 27, 29, 39, Tab 10. The communications protocols underlying the Web lack any provision to track and screen individuals who access the Web. Berners-Lee Dec. 16, Tab 4. Using additional programming, it would be possible for an individual web publisher to screen access using a credit card or other identification requirement, but such a screening process would be prohibitively expensive and time consuming for non-fee charging speakers. Id.; Cady Dec. 36, Tab 10. The same constraints apply to ftp and gopher sites. Cady Dec. 39, Tab 10. 46. Bradner Dec. 3-5, Tab 7; Collet Dec. 10, Tab 12; Cady Dec. 20, Tab 10. 47. See Bradner Dec. 10, Tab 7; Croneberger Dec. 8, Tab 13; Geiman Dec. 6, Tab 17; Grenquist Dec. 11, Tab 18; Hammer Dec. 8, Tab 20; Krug Dec. 14, Tab 20; Mitchell Dec. 8, Tab 25; Teicher Dec. 10, Tab 33; Wolf Dec. 7, Tab 39. 48. Moreover, even if pre-registration by content users were practically or economically feasible (which it is not), users' ability to find and utilize material would be drastically diminished because few of them could anticipate the need to pre-register for a particular site. A huge percentage of Internet traffic consists of users engaged in spontaneous unpredictable research (often aided by the extraordinary search potential of the hypertext language that drives the World Wide Web). A pre-registration requirement would effectively make this type of search impossible as to files or Web Sites containing any material deemed "patently offensive." The attendant decline in adult users' visits to information sites that had pre-registration requirements could be expected, in turn, to diminish content providers' willingness to place arguably offensive material online. 49. There are legitimate reasons why speakers may want to voluntarily restrict access to their communications -- to protect intellectual property or privacy interests, for example. The Act, however, imposes this duty upon speakers who will either be unable, or find it extremely burdensome, to implement an access control system they would not otherwise establish. The critical distinction is between speaker-chosen and government-imposed restrictions. 50. Cady Dec. 7, 8, 11, Tab 10; Butterworth Dec. 8- 9, Tab 9; Stonesifer Dec. 5-6, Tab 32. 51. Burke Dec. 10-12, Tab 8; Butterworth Dec. 7, Tab 9; Jacobson Dec. 7-12, Tab 21; Stonesifer Dec. 7, Tab 32. 52. Duvall Dec. 13-14, Tab 14. 53. Duvall Dec. 16, Tab 14. 54. Spicer Dec. 8-9, Tab 31. 55. Duvall Dec. 12, Tab 14; Spicer Dec. 10, Tab 31. 56. The categories are Violence/Profanity, Partial Nudity, Nudity, Sexual Acts, Gross Depictions, Racism/Ethnic Impropriety, Satanic/Cult, Drugs/Drug Culture, Militant/Extremist, Gambling, Questionable/Illegal, and Alcohol, Beer & Wine. Spicer Dec. 12-23, Tab 31. 57. Burke Dec. 10-13, Tab 8; Butterworth Dec. 7, Tab 9; Jacobson Dec. 7-8, Tab 21. 58. Spicer Dec. 32, Tab 31. 59. Duvall Dec. 18, Tab 14; Spicer Dec. 31, Tab 31. In addition to these technologies that allow individual parents to control what their children can access, products such as the Netscape Proxy Server and WEBTrack provide schools and businesses the ability to block specific sites from access by all users on the network, and to track and monitor use of the Internet. 60. The World Wide Web Consortium is one of a number of organizations of computer scientists and engineers who confer to agree upon technical protocols and standards to be used within the Internet. These defined standards and protocols are what allow the diverse and otherwise incompatible computers across the world to "internetwork" with each other. 61. See generally Vezza Dec., Tab 35 (detailing PICS standard and operations). 62. Duvall Dec. 29, Tab 14; Spicer Dec. 37-41, Tab 31. 63. Sable 492 U.S. at 128; accord Bolger v. Youngs Drug Products Corp. 463 U.S. 60, 73 (1983). 64. Thus, this bedrock principle has already been applied in the context of sale or distribution of books and other printed materials (Butler), use of the postal service to mail unsolicited commercial advertisements to homes (Bolger), and use of the telephone to sell prerecorded commercial telephone messages (Sable). 65. The Supreme Court has stressed that in applying this test it is important to consider whether other private or governmental alternatives, short of a ban -- already serve to protect children. If so, the advancement of the governmental interest served by the ban will be marginal. See Sable, 492 U.S. at 129 (no showing that other means do not afford similar protection without such infringement); Bolger, 463 U.S. at 73 (ban "provides only the most limited incremental support" because parents can exercise substantial control without any governmental involvement, and other laws afford control over unwanted receipt of materials); Butler, 352 U.S. at 383 n.* (noting other criminal laws covering same topic short of ban). 66. See Statement Of The Case, Point C, supra. See Geimann Dec. 6, Tab 17; Grenquist Dec. 11, Tab 18; Hammer Dec. 8, Tab 20; Ketter Dec. 8, Tab 22; Krug Dec. 14, Tab 23; Mitchell Dec. 8, Tab 25; Shelkrot Dec. 6, Tab 29; Weitzner Dec. 8, Tab 37; Wheaton Dec., Tab 38, Ex. B 10; Wolf Dec. 6, Tab 39; Berners-Lee Dec. 8, 15, 16, Tab 4; Bradner Dec. 5, 7, 9, Tab 7. 67. Barrett Dec. 6, Tab 1; Bennett Dec. 8, Tab 3; Blum Dec. 9, Tab 5; Croneberger Dec. 8, Tab 13; Hammer Dec. 8, Tab 20; Ketter Dec. 8, Tab 22; Mosher Dec. 10, Tab 26; Scorza Dec. 11, Tab 28; Teicher Dec. 10, Tab 33; Wolf Dec. 6, Tab 39. 68. Bradner Dec. 5, 7, 9, Tab 7; Francis Dec. 9, Tab 16; Collet Dec. 10, Tab 12. 69. Jacobson Dec. 13, Tab 21; Stonesifer Dec. 5-6, Tab 32. 70. Accord United States v. National Treasury Employees Union, 115 S. Ct. 1003, 1014 (1995); Fabulous Assoc., 896 F.2d at 785 ("The First Amendment protects against government inhibition as well as prohibition.") (quotation omitted). 71. Of course, Congress is not required to make findings or hold hearings, and the absence of findings or hearings is not, by itself, sufficient reason to hold an Act of Congress unconstitutional. But it is the government's burden to justify any law that abridges interests protected by the First Amendment, and as the Supreme Court has noted, the absence of findings of fact or hearings decreases the likelihood the government will be able to meet that burden. See Sable, 492 U.S. at 129-30. 72. In Sable, the Court unanimously struck down 47 U.S.C. 223(b), which banned all "indecent" commercial telephone messages. The Court found that "the congressional record presented to us contains no evidence as to how effective or ineffective the FCC's most recent regulations [permitting technological defenses to liability for generating indecent messages] were or might prove to be" with respect to indecency. Sable, 492 U.S. at 130 (emphasis in original). Instead, the record contained only conclusory statements during the debates by proponents of the bill . . . that under the FCC regulations minors could still have access to dial-a-porn messages . . . . No Congressman or Senator purported to present a considered judgment with respect to how often or to what extent minors could or would circumvent the rules and have access to dial-a-porn messages. Id. at 129-30. Because a lesser burden on speech may have been available, Congress' lack of findings doomed the indecency ban: "For all we know from this record, the FCC's technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective . . . if this is the case, it seems to us that 223(b) is not a narrowly tailored effort . . . ." Id. at 130-31. 73. Berners-Lee Dec. 14-15, Tab 4; Bradner Dec. 11, Tab 7. 74. Bradner Dec. 5, 7, 9, Tab 7; Cady Dec. 7, 8, 11, Tab 10; Francis Dec. 9, Tab 16. 75. Except insofar as it applies to obscenity and child pornography (and hence is redundant of existing obscenity and child pornography laws), subsection (d) "`simply has no core' of constitutionally unprotected expression to which it might be limited." City of Houston v. Hill, 482 U.S. 451, 468 (1987) (quoting Smith v. Goguen, 415 U.S 566, 578 (1974)). 76. In many overbreadth cases, the First Amendment plaintiff (often a criminal defendant) relies exclusively upon the challenged law's effects upon the free speech rights of persons not before the court. See, e.g., Massachusetts v. Oakes, 491 U.S. 576, 581 (1989). Here, although the Act directly violates plaintiffs' own First Amendment rights in a variety of ways, the certainty that the Act's "very existence" will "cause others not before the court to refrain from constitutionally protected speech or expression," Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973), underlines the need to invalidate subsection (d) on its face. 77. Notwithstanding the government's power to restrict distribution to minors of non-obscene materials with prurient appeal, see Ginsberg v. New York, 390 U.S. 629 (1968), and to regulate the use of profane language that could disrupt the educational environment, see Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), it is extremely doubtful whether the government could flatly ban -- as the Act purports to do -- the distribution of sexually oriented but truthful scientific or educational matter (e.g., information on "safer sex" or AIDS) from children (particularly older minors). Statutes that restrict "`the free flow of truthful information,'" suffer from "a `basic' constitutional defect regardless of the strength of the government's interest.'" Bolger, 463 U.S. at 75 (quoting Linmark v. Willingboro, 431 U.S. 85, 95-96 (1977)) (emphasis added). Nor are we aware of any modern precedent holding that the government can withhold even from minors works of serious literary value on the ground that they are indecent. 78. "In assessing whether a minor has the requisite capacity for individual choice the age of the minor is a significant factor." Ernoznik v. City of Jacksonville, 422 U.S. 205, 214 n.11 (1975) (citing Rowan v. Post Office Dep't, 397 U.S. 728, 741 (1970)). For example, Web sites or discussion groups on the subjects of sexually transmitted diseases, "safe sex," or contemporary novels that would be inappropriate for a 7-year-old Internet user might well be entirely appropriate for high school or college students who are 17. The Act, however, prohibits anyone from making such resources available to anyone under 18. It also makes sexual candor or vulgarity in a private e-mail exchange between 17-year-olds -- an exchange that would be entitled to complete First Amendment protection if conducted through the United States mail -- a series of felonies. See 223(a)(1)(B), (d). 79. The constitutional difficulties with the Act's undifferentiating age line would be present even if the subsection (e)(5) blocking provisions were feasible. 80. Mosher Dec. 6, 10, Tab 26; Boiss Dec. 8, Tab 6. 81. The Act's sweep is far broader than that of the state "harmful to minors" statute upheld in Ginsberg v. New York, 390 U.S. 629 (1968). That statute banned the sale to persons under 17 of sex-related pictures of which the predominant appeal was to the "prurient, shameful or morbid interest of minors," that was "patently offensive" according to adults' community standards about what was inappropriate for children, and that was "utterly without redeeming social importance for minors." Id. at 646. The instant Act, in contrast, contains no "prurient appeal" or "redeeming importance" requirements. 82. See Ginsberg v. New York, 390 U.S. 629 (1968) (upholding ban on sale to persons under 17 of material obscene as to minors; statute imposed no restrictions on sales to adults); Butler v. Michigan, 352 U.S. 380 (1957) (statute banning sale of materials tending to corrupt youth invalid because it prevented adult access); American Booksellers v. Webb, 919 F.2d 1493, 1502 (11th Cir. 1990) (in evaluating constitutionality of state law forbidding open display of material harmful to minors "the crucial inquiry . . . is whether the restriction on adults' access to protected speech is unnecessarily burdensome, or `significant,' or, stated differently, whether alternate modes of adult access are unduly restricted."); Upper Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389, 1395 (8th Cir. 1985) (bookstore display restrictions designed to restrict children's access to sexually oriented material upheld because it did not "unduly burden the First Amendment rights of adults"); M.S. News Co. v. Casado, 721 F.2d 1281, 1288 (10th Cir. 1983) (upholding law requiring bookstores to employ "blinder racks" for adult materials because it "does not unreasonably restrict adults' access to material which is not obscene as to them"). 83. Pacifica is one of a series of Supreme Court decisions holding that unique characteristics of the broadcast medium justify a degree of government content regulation that would not be permitted elsewhere. See id. 438 U.S. at 748. Thus, for example, the Court has permitted federal regulators to override broadcasters' programming preferences to ensure that listeners and viewers "receive suitable access to social, political, esthetic, moral, and other ideas and experiences." Red Lion Broadcasting Co. v FCC, 395 U.S. 367, 390 (1969). The Court has explained the special First Amendment standard by reference to four special characteristics of broadcast media: scarcity of frequencies, intrusiveness, easy accessibility for children, including "even those too young to read," and difficulty of viewer control. See Pacifica, 438 U.S. at 748-50; Red Lion, 395 U.S. at 388; National Broadcasting Co. v. United States, 319 U.S. 190, 226 (1943). None of these characteristics applies to cyberspace. 84. Even in the e-mail setting, recipients must affirmatively "open" their mail in order to read the full message. 85. Berners-Lee Dec. 9, Tab 4; Bradner Dec. 3, 6, 8, Tab 7. 86. As one scholar has commented, the Turner Court's refusal to extend the scarcity rationale to cable television, see 114 S. Ct. at 2456-58, "suggests that new technologies will generally be subject to ordinary free speech standards, not to the more lenient standards applied to broadcasting." Cass R. Sunstein, The First Amendment in Cyberspace, 104 Yale L.J. 1757, 1769 (1995). 87. Moreover, online content providers, like publishers in the print medium, have no control over an individual's access to expression in cyberspace. See Turner 114 S.Ct. at 2466. Cyberspace, including the Internet, is owned by no one and controlled by no one and there exists no bottleneck or gatekeeper through which the expression must pass. Although services such as AOL, Compuserve, the Microsoft Network, and Prodigy provide subscribers both content and access to the Internet, once the subscribers access the Internet, these services have no control over the content that is available. Moreover, the subscribers have a wide variety of avenues to access expression on the Internet and other interactive computer services; unlike with cable, they are not limited to one physical connection running into their home. Cf. Turner, 114 S.Ct. at 2466. In cyberspace, there is no "potential for abuse of . . . private power" over "the free flow of information and ideas." Id. 88. See Jerry Berman and Daniel J. Weitzner, "Abundance And User Control: Renewing the Democratic Heart Of The First Amendment In The Age Of Interactive Media," 104 Yale L.J. 1619 (1995). 89. See generally Lawrence Lessig, "The Path of Cyberlaw," 104 L.J. 1743 (1995) (discussing nature and importance of associational interests in cyberspace). 90. Leahy Dec. 3-6, Tab 24. See Cass R. Sunstein, "The First Amendment in Cyberspace," 104 Yale L.J. 1757, 1784. (canvassing these and other existing uses of interactive computer services to enhance political deliberation, and observing that cyberspace offers new possibilities for political candidates of modest means to compete for the minds of the citizenry). 91. See generally Eugene Volokh, "Cheap Speech and What It Will Do," 104 Yale L.J. 1805 (1995). 92. "Computer coffee shops" are rapidly proliferating, where for less than it would cost to xerox 50 copies of a paper message, an individual could make that same message available through the Internet to 40 million people. Moreover, most universities now provide free access to the Internet for their students. And public libraries across the country provide free access to the Internet for library patrons. See, e.g., Barrett Dec. 4, Tab 1; Boiss Dec. 4, Tab 6; Vaughn Dec. 5, Tab 34. 93. See, e.g., Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982); Smith v. Goguen, 415 U.S. 566 (1974); Grayned v. City of Rockford, 408 U.S. 104 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). 94. The government is wrong in asserting plaintiffs must demonstrate that "'no set of circumstances exists under which the Act would be valid.'" Deft ACLU Br. at 40 (quoting Rust v. Sullivan, 500 U.S. 173, 183 (1991)). The Supreme Court has explained that the higher certainty requirement permits the Court "to invalidate [for vagueness] a criminal statute on its face even when it could conceivably have had some valid applications." Kolender, 461 U.S. at 358 n.8 (emphasis added). 95. See Barret Dec. 6, Tab 1; Bendall Dec. 4, Tab 2; Bennett Dec. 11, Tab 3; Boiss Dec. 7, Tab 6; Croneberger Dec. 4, Tab 13; Fagin Dec. at 1, Tab 15; Geiman Dec. 9, Tab 17; Grenquist Dec. 12, Tab 18; Guttenberg Dec. 12, Tab 19; Hammer Dec. 3, Tab 20; Ketter Dec. 9, Tab 22; Krug Dec. 6, Tab 23; Mitchell Dec. 9, Tab 25; Mosher Dec. 2, Tab 26; Schwartzman Dec. 8, Tab 27; Scorza Dec. 5, Tab 28; Shelkrot Dec. 3, Tab 29; Teicher Dec. 6, Tab 33; Weisberg Dec. 10, Tab 36; Wheaton Dec., Tab 38, Ex. A, B; Wolf Dec. 8, Tab 39; 96. In contrast to obscenity law, where expression must pertain to statutorily specified "sexual conduct" in order to be "obscene," Miller, 413 U.S. at 24 & n.6, the Act refers obliquely, and more broadly, to "sexual or excretory activities," without further explanation or specificity. See 223(d)(1)(B). The vagueness of these terms is another basis for finding the Act violative of the Fifth Amendment. 97. Although to any ordinary person the terms might be understood to have different meanings, Congress apparently intended that the "indecent" standard of subsection (a) and the "patently offensive" standard of subsection (d) have the same meaning. See Conf. Report at 188 (noting that "section 223(d)(1) codifies the definition of indecency from [Pacifica]."). 98. In Pacifica, the Court examined the FCC's enforcement of an "indecency" standard which the FCC had interpreted to mean "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk that children may be in the audience." 438 U.S. at 732 (emphasis added) (internal quotations omitted). The Court stressed it was upholding the FCC's determination that the "language as broadcast was indecent." Id. (emphasis added); accord id. at 734 (confining holding to review of FCC's judgment as to "the monologue 'as broadcast'"); id. at 735 ("the focus of our review must be on the Commission's determination that the Carlin monologue was indecent as broadcast"). See also In re Regulations Governing Indecent Communications by Telephone, Gen. Dkt. No. 90-64, 12 (rel. June 29, 1990) (FCC "dial-a- porn" indecency standard refers to contemporary community standards "for the telephone medium"). 99. The FCC has argued that its standard for broadcast is valid because it has "general expertise in broadcast matters" and therefore can adjudicate whether a particular broadcast is "indecent" under the broadcast test. In re Sagittarius Broadcasting Corp., 7 F.C.C.R. 6873, 6876 (1992). However, neither the FCC, nor any other federal agency, has any comparable "expertise in [computer] matters," and the Act expressly denies the FCC the authority to enforce its provisions. See 47 U.S.C. 223(d)(6). 100. Indeed, a speaker would have to consider whether the "least common denominator" is the least tolerant local community in the world, since, as Congress recognized, this is "a global, medium." Conf. Report at 191. Communications entirely appropriate for New York City may be deemed inappropriate for Salt Lake City, and grossly inappropriate for Saudi Arabia. 101. See, e.g., Croneberger Dec. 4, Tab 13; Geimann Dec. 10, Tab 17; Hammer Dec. 3, Tab 20; Jacobson Dec. 9, Tab 21; Krug Dec. 6, Tab 23; Mosher Dec. 2, Tab 26; Scorza Dec. 7, Tab 28; Shelkrot Dec. 3, Tab 29; Teicher Dec. 6, Tab 33. 102. Mosher Dec. 4-8, Tab 26. 103. Hammer Dec. 6, Tab 20. 104. Teicher Dec. 7, Tab 33. 105. Scorza Dec. 8, Tab 28. 106. Schwartzman Dec. 4-7, Tab 27; Weitzner Dec. 10- 12, Tab 37. 107. The Conference Report unhelpfully states nothing more than that the methods need not be "100%" effective. But it gives no indication of what level of "ineffectiveness" the jury should tolerate. See Conf. Rep. at 190. 108. This is particularly so because this defense, and all of the Act's defenses, are only defenses which must be raised and proved after the speaker has already been subjected to prosecution. Even speakers who believe their actions will ultimately be found to constitute a defense may be deterred from speaking in order to avoid the humiliation, stigma, and expense of defending a criminal prosecution. 109. If the Act is not enjoined, many content providers will remove speech from the Internet in order to avoid criminal prosecution. See, e.g., Bendall Dec. 4, Tab 2; Bennett Dec. 13, Tab 3; Blum Dec. 8, Tab 5; Croneberger Dec. 7, Tab 13; Gieman Dec. 8, Tab 17; Guttenberg Dec. 14, Tab 19; Ketter Dec. 10, Tab 22; Krug Dec. 13-15, Tab 23; Mosher Dec. 9, Tab 26; Scorza Dec. 10, Tab 28; Stonesifer Dec. 5, Tab 32; Teicher Dec. 9, Tab 33; Weisberg Dec. 10, Tab 36; Weitzner Dec. 12, Tab 37. 110. There is no discussion of this defense in the Conference Report. 111. See supra n.43. 112. The Act fails to specify whether there can be more than one "content provider" of, or person who "displays" or "posts," any particular communication. 113. The government agrees the access provider defenses should be broadly construed, so the only question before the Court is how broadly. See Deft ACLU Br. at 49, n.35. 114. Defendants erroneously rely on Hohe for the proposition that denial of First Amendment rights does not necessarily constitute irreparable harm. See Deft ACLU Br. at 20. Hohe involved a challenge by nonunion members to the union's procedures for collection of a fee charged for acting as the collective bargaining representative. Hohe, 868 F.2d at 71 & n.1. Although the Hohe plaintiffs raised a claim grounded on the First Amendment, the court held that, because the alleged injury was merely a monetary one, it was fully remediable at law and thus not irreparable. Id. at 72-73. That is clearly not the case here. 115. Defendants, in an effort to contend that the Act's chilling effect on plaintiffs' freedom of expression does not amount to irreparable harm, quote (out of context) cases involving the jurisdictional "case or controversy" requirement. See Deft ACLU Br. at 19 (citing Younger v. Harris, 401 U.S. 37, 42 (1971) and Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 (1979)). There is no question, however, that plaintiffs have standing to bring this pre-enforcement facial challenge to the Act. See Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 392 (1988) (concluding bookstores have standing to challenge law criminalizing display of books harmful to minors because "the law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution."). APPENDIX Declarations, Statements and Affidavits referred to in the foregoing Memorandum of Law are contained in two volumes accompanying ALA Plaintiffs' Motion for a Preliminary Injunction. The following is an index of those declarations: No. Declarant Affiliation VOLUME 1: 1. Barrett, Jaia Association of Research Libraries 2. Bendall, Jennifer Recording Industry Association of America 3. Bennett, Randy Newspaper Association of America 4. Berners-Lee, Timothy J. Professor, Massachusetts Institute of Technology; Director, World Wide Web Consortium 5. Blum, Carol People for the American Way 6. Boisse, Dr. Joseph University of California, Santa Barbara Library 7. Bradner, Scott O. Office of Information Technology, Harvard University 8. Burke, Sheila A. America Online, Inc. 9. Butterworth, Mark CompuServe Incorporated 10. Cady, Glee Harrah NETCOM On-Line Communications Services, Inc. 11. Cerf, Vinton G. MCI Telecommunications Corporation 12. Collet, Robert D. Commercial Internet eXchange Association 13. Croneberger, Robert Carnegie Library of Pittsburgh 14. Duvall, Bill Surfwatch, Inc. 15. Fagin, Barry & Michelle Families Against Internet Censorship 16. Francis, Rick NETCOM On-Line Communications Services, Inc. 17. Geimann, Steve Society of Professional Journalists 18. Grenquist, Peter Association of American University Presses, Inc. 19. Guttenberg, Jonathon Bantam Doubleday Dell Publishing Group, Inc. 20. Hammer, Sharon Fort Vancouver Regional Library 21. Jacobson, Marc Prodigy Services Company 22. Ketter, William B. American Society of Newspaper Editors 23. Krug, Judith F. American Library Association; Freedom to Read Foundation VOLUME 2: 24. Leahy, Patrick J. United States Senator 25. Mitchell, Russ Wired Ventures, Ltd. 26. Mosher, Paul University of Pennsylvania Libraries 27. Schwartzman, Andrew J. Media Access Project 28. Scorza, Joseph C. Health Sciences Libraries Conso