AMERICAN CIVIL LIBERTIES UNION, :
ANDROGYNY BOOKS, INC. d/b/a A DIFFERENT :
LIGHT BOOKSTORES, AMERICAN BOOKSELLERS :
FOUNDATION FOR FREE EXPRESSION, : COMPLAINT FOR
ARTNET WORLDWIDE CORPORATION, : DECLARATORY AND
BLACKSTRIPE, ADDAZI, INC. d/b/a : INJUNCTIVE RELIEF
CONDOMANIA, ELECTRONIC FRONTIER :
FOUNDATION, ELECTRONIC PRIVACY :
INFORMATION CENTER, FREE SPEECH MEDIA, :
INTERNET CONTENT COALITION, OBGYN.NET, :
PHILADELPHIA GAY NEWS, PLANETOUT :
CORPORATION, POWELL'S BOOKSTORE, : Civil Action No. 98-CV-5591
RIOTGRRL, SALON INTERNET, INC. :
and WEST STOCK, INC., :
:
Plaintiffs, :
:
v. :
:
JANET RENO, in her official capacity as :
ATTORNEY GENERAL OF THE UNITED STATES, :
:
Defendant. :
:
- Congress has enacted a broad censorship law that imposes
severe criminal and civil penalties on the availability, display
and dissemination of constitutionally protected, non-obscene
materials on the Internet by making it a crime to "knowingly . . .
by means of the World Wide Web, make[] any communication for
commercial purposes that is available to any minor and that
includes any material that is harmful to minors . . . ." 47 U.S.C.
Sec. 231(a)(1) (hereinafter 47 U.S.C. Sec. 231 is referred to as
the "Act"). Under the Act, any speech that some community
might consider to be "harmful to minors" -- including Ken Starr's
report on the Clinton-Lewinsky scandal or a Mapplethorpe
photograph -- is potentially criminal if displayed for free on the
World Wide Web (the "Web") and accessible by minors. This action
seeks to have the Act declared unconstitutional under the First
and Fifth Amendments of the United States Constitution, both on
its face and as applied to plaintiffs, and to enjoin the
government from enforcing it
- The Act's constitutional flaws are identical to the flaws that
led the Supreme Court to strike down the Communications Decency
Act (the "CDA"), in Reno v. American Civil Liberties Union,
521 U.S. __, 117 S. Ct. 2329 (1997). The effect of the Act, like
the CDA, is to restrict adults from communicating and
receiving expression that is clearly protected by the
Constitution
- Plaintiffs represent a broad range of individuals and entities
who are speakers, content providers, and users of the Web.
Plaintiffs include online magazines, booksellers, media companies,
art vendors, and gay and lesbian content providers. The Act
directly violates the First Amendment rights of plaintiffs, their
members and tens of millions of other speakers to communicate
protected expression on the Web. In addition, the Act violates the
rights of millions of Web users to access and view
constitutionally protected speech, including the right to do so
anonymously.
- The Act regulates and restricts speech on the Web. The
Internet in general, and the Web in particular, represents the
most participatory marketplace of mass speech yet developed -- it
is in many ways a far more speech-enhancing medium than radio or
television, print, the mails, or even the village green. With a
few simple tools and at a very low cost, the Web enables average
citizens and small businesses, as well as large corporations, to
publish online newspapers, distribute electronic pamphlets,
participate in local or worldwide conversations, and communicate
with a broader audience than ever before possible. The vast
majority of information on the Web is available for free, even
when it is created and provided by commercial entities or
individuals hoping to make a profit. Thus, the Web also provides
millions of users with access to a vast range of free information
and resources. Web users are far from passive listeners -- rather,
they are empowered with the tools to seek out exactly the
information they need and to respond with their own information if
desired
- The Act does not restrict the sale of speech on the
Web. In fact, the Act provides an explicit defense for providers
who charge for their speech by credit or debit card. Rather, the
Act explicitly and purposefully bans a wide range of protected
expression that is provided for free on the Web by
organizations and entities who happen to be communicating on the
Web "for commercial purposes.
- In addition, because of the way the Web works, the Act's
prohibition on certain communications with minors effectively
would ban those same communications between adults. The Act
targets both written and visual expression that is
constitutionally protected for adults, including, for example,
valuable works of literature and art, safer sex information,
examples of popular culture, and a wide range of robust human
discourse about current issues and personal matters that may
include provocative or sexually oriented language. There are no
reasonable means for speakers to ascertain the age of persons who
access their free Web communications, or to restrict or prevent
access by minors to their content. Thus, the Act will reduce the
adult population in cyberspace to reading and communicating only
material that is suitable for young children. In addition, because
the Act makes no allowance for the varying levels of maturity of
minors of different ages, the Act prohibits speech that is
valuable and constitutionally protected for older minors, but that
may not be appropriate for younger children
- The speech at issue in this case does not include obscenity,
child pornography, or speech used to entice or lure minors into
sexual activity; such speech is already illegal under existing
law.
JURISDICTION AND VENUE
- This case arises under the United States Constitution and the
laws of the United States and presents a federal question within
this Court's jurisdiction under Article III of the federal
Constitution and 28 U.S.C. Secs. 1331 and 1361
- The Court has the authority to grant declaratory relief
pursuant to the Declaratory Judgment Act, 28 U.S.C. Sec. 2201 et
seq
- The Court has the authority to award costs and attorneys' fees
under 28 U.S.C. Sec. 2412
- Venue is proper in this district under 28 U.S.C. Sec. 1391(e).
THE STATUTORY LANGUAGE AT ISSUE
- The Act, to be codified at 47 U.S.C. Sec. 231, was signed into
law on October 21, 1998 as part of the Omnibus Appropriations Act.
Unless enjoined, the Act will become effective thirty days after
the date of enactment
- The Act imposes criminal and civil penalties for "knowingly
and with knowledge of the character of the material, in interstate
or foreign commerce by means of the World Wide Web, mak[ing] any
communication for commercial purposes that is available to any
minor and that includes any material that is harmful to minors . .
. ." 47 U.S.C. Sec. 231(a)(1)
- Persons who violate Section 231(a) "shall be fined not more
than $50,000, imprisoned not more than 6 months, or both." 47
U.S.C. Sec. 231(a)(1). Section 231(a)(2) states that "[i]n
addition to the penalties under paragraph (1), whoever
intentionally violates such paragraph shall be subject to a fine
of not more than $50,000 for each violation. For purposes of this
paragraph, each day of violation shall constitute a separate
violation." 47 U.S.C. Sec. 231(a)(2)
- Section 231(a)(3) states that "whoever violates paragraph (1)
shall be subject to a civil penalty of not more than $50,000 for
each violation. For purposes of this paragraph, each day of
violation shall constitute a separate violation." 47 U.S.C. Sec.
231(a)(3)
- The Act defines material that is "harmful to minors" as "any
communication, picture, image, graphic image file, article,
recording, writing, or other matter of any kind that is obscene or
that -- (A) the average person, applying contemporary community
standards, would find, taking the material as a whole and with
respect to minors, is designed to appeal to, or is designed to
pander to, the prurient interest; (B) depicts, describes, or
represents, in a manner patently offensive with respect to minors,
an actual or simulated sexual act or sexual contact, an actual or
simulated normal or perverted sexual act, or a lewd exhibition of
the genitals or post-pubescent female breast; and (C) taken as a
whole, lacks serious literary, artistic, political, or scientific
value for minors." 47 U.S.C. Sec. 231(e)(6)
- The Act defines "minor" as "any person under 17 years of age."
47 U.S.C. Sec. 231(e)(7)
- The Act defines the phrase "by means of the World Wide Web" to
mean "by placement of material in a computer server-based file
archive so that it is publicly accessible, over the Internet,
using hypertext transfer protocol or any successor protocol." 47
U.S.C. Sec. 231(e)(1)
- The Act defines "commercial purposes" as being "engaged in the
business of making such communications." 47 U.S.C. Sec.
231(e)(2)(A)
- The Act defines "engaged in the business" as meaning "that the
person who makes a communication, or offers to make a
communication, by means of the World Wide Web, that includes any
material that is harmful to minors devotes time, attention, or
labor to such activities, as a regular course of such person's
trade or business, with the objective of earning a profit as a
result of such activities (although it is not necessary that the
person make a profit or that the making or offering to make such
communications be the person's sole or principal business or
source of income). A person may be considered to be engaged in the
business of making, by means of the World Wide Web, communications
for commercial purposes that include material that is harmful to
minors, only if the person knowingly causes the material that is
harmful to minors to be posted on the World Wide Web or knowingly
solicits such material to be posted on the World Wide Web." 47
U.S.C. Sec. 231(e)(2)(B)
- Section 231(b) of the Act attempts to exempt certain persons
from liability. It states: "For purposes of subsection (a), a
person shall not be considered to make any communication for
commercial purposes to the extent that such person is -- (1) a
telecommunications carrier engaged in the provision of a
telecommunications service; (2) a person engaged in the business
of providing an Internet access service; (3) a person engaged in
the business of providing an Internet information location tool;
or (4) similarly engaged in the transmission, storage, retrieval,
hosting, formatting, or translation (or any combination thereof)
of a communication made by another person, without selection or
alteration of the content of the communication, except that such
person's deletion of a particular communication or material made
by another person in a manner consistent with subsection (c) or
section 230 shall not constitute such selection or alteration of
the content of the communication.
- Section 231(c) of the Act provides an affirmative defense if
the defendant "in good faith, has restricted access by minors to
material that is harmful to minors - (A) by requiring use of a
credit card, debit account, adult access code, or adult personal
identification number; (B) by accepting a digital certificate that
verifies age; or (C) by any other reasonable measures that are
feasible under available technology." 47 U.S.C. Sec. 231(c)(1)
- Section 231(d) of the Act forbids the disclosure of "any
information collected for the purposes of restricting access to
such communications" to minors without prior consent. 47 U.S.C.
Sec. 231(d)(1)(A)
- The Act does not define the distinction between what
constitutes a "knowing" violation under Sec. 231(a)(1) and an
"intentional" violation under Sec. 231(a)(2)
- The Act makes no distinction between material that may be
"harmful" to very young minors and material that may be "harmful"
to older minors
- The Act does not define the relevant "community" for purposes
of determining what is "harmful to minors" in the global medium of
cyberspace
- The Act does not define what comprises a work "considered as a
whole" in the context of the Web, which is a seamless,
interconnected set of texts, sound and graphics provided by
different content providers and located on different computers
around the world
- Congress passed the Act despite a letter from the Department
of Justice (the "DOJ") dated October 5, 1998 to the Chairman of
the House Committee on Commerce, Representative Thomas Bliley,
stating that the Act raises "difficult constitutional issues" in
light of Reno v. American Civil Liberties Union, 521 U.S.
__, 117 S. Ct. 2329 (1997). See Department of Justice
letter dated October 5, 1998 to the Chairman of the House
Committee on Commerce, Representative Thomas Bliley (the "DOJ
Letter") at 3. The DOJ also emphasized the "numerous ambiguities
concerning the scope" of the Act's coverage. DOJ Letter at 4. In
addition, the DOJ expressed doubt that the Act "would have a
material effect in limiting minors' access to harmful materials"
given that "children would still be able to obtain ready access to
pornography from a myriad of overseas web sites." DOJ Letter at 3.
In light of the constitutional problems and doubtful efficacy of
the Act, the Department of Justice concluded that it did "not
believe that it would be wise to divert the resources that are
used for important initiatives [such as fighting child pornography
and thwarting child predators] to prosecutions of the kind
contemplated under the [Act]." DOJ Letter at 3.
THE PARTIES
- The named plaintiffs are briefly described below. The impact
of the Act on the plaintiffs' communications is described more
fully in paragraphs 81-190
- Plaintiff AMERICAN CIVIL LIBERTIES UNION ("ACLU") is a
nationwide, nonpartisan organization of nearly 300,000 members
dedicated to defending the principles of liberty and equality
embodied in the Bill of Rights. The ACLU is incorporated in the
District of Columbia and has its principal place of business in
New York City
- Plaintiff A Different Light BOOKSTORES maintains a Web site
through which visitors can purchase books and music by, about, and
for gay and lesbian individuals and can receive information about
the gay and lesbian community. Androgyny Books, Inc. d/b/a A
Different Light Bookstores is incorporated in California and has
its principal places of business in New York, New York, San
Francisco, California and West Hollywood, California
- Plaintiff AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION
("ABFFE") was organized as a not-for-profit organization by the
American Booksellers Association in 1990 to inform and educate
booksellers, other members of the book industry, and the public
about the dangers of censorship and to promote and protect the
free expression of ideas, particularly freedom in the choice of
reading materials. ABFFE has over 300 member bookstores, primarily
in the United States. ABFFE is incorporated in Delaware, and has
its principal place of business in New York, New York
- Plaintiff ARTNET WORLDWIDE CORPORATION ("ArtNet") is the
leading fine art vendor on the Web. ArtNet is incorporated in New
York and has its principal place of business in New York, New
York
- Plaintiff BLACKSTRIPE is a Web-based resource for gay and
lesbian individuals of African descent. BlackStripe is operated by
an individual residing in Wilmington, Delaware using a server
located in California
- Plaintiff CONDOMANIA is the nation's first condom store and is
a leading online seller of condoms and distributor of safer-sex
related materials. Addazi, Inc. d/b/a Condomania is incorporated
in Massachusetts and has its principal place of business in Los
Angeles, California
- Plaintiff ELECTRONIC FRONTIER FOUNDATION ("EFF") is a
nationwide, nonprofit organization of approximately 2,000 paying
individual members that is committed to defending civil liberties
in the world of computer communications, to developing a sound
legal framework for that world, and to educating government,
journalists, and the general public about the legal and social
issues raised by this new medium. EFF is incorporated in
California and has its principal place of business in San
Francisco, California
- Plaintiff ELECTRONIC PRIVACY INFORMATION CENTER ("EPIC") is a
non-profit research organization that collects and distributes
information concerning civil liberties and privacy issues arising
in the new communications media. EPIC is a project of the Fund for
Constitutional Government (the "Fund"), a tax-exempt organization
incorporated in the District of Columbia. Both EPIC and the Fund
have their principal places of business in the District of
Columbia
- Plaintiff Free Speech Media, LLC is a Colorado limited
liability for-profit corporation. Free Speech Media, LLC operates
a project called Free Speech Internet Television ("FSITV"), which
promotes independent audio and video content on the Web. While the
FSITV Web site is designed to encourage the democratic expression
of progressive ideals, it welcomes the contribution of materials
regardless of ideology. FSITV believes that such democratic media
can and will improve the cultural and political fabric of society
by diversifying the exchange of information. FSITV's base of
operations is located in Colorado
- Plaintiff INTERNET CONTENT COALITION (the "ICC") is a
nonprofit professional association of providers of original
content for the Internet. ICC is incorporated in New York and has
its principal place of business in Westtown, Pennsylvania. Members
of the ICC include many well-known and high-profile providers of
original content on the Web such as: CNET, MSNBC, Sony Online, The
New York Times, Time, Inc., and ZDNet
- Plaintiff OBGYN.NET is a comprehensive international online
resource center for professionals in Obstetrics and Gynecology,
the medical industry, and the women they serve. OBGYN.net is a
service and publication that has its principal place of business
in Austin, Texas, and that is wholly owned by Elecomm Corporation,
which is incorporated in Texas
- Plaintiff PHILADELPHIA GAY NEWS has been the leading print
newspaper for the gay and lesbian community of Philadelphia for 22
years. It now also publishes on the Web. It is a for-profit
corporation that is incorporated in Pennsylvania and has its
principal place of business in Philadelphia, Pennsylvania
- Plaintiff PLANETOUT CORPORATION is a leading online content
provider for gay, lesbian, bisexual and transgendered persons. It
is a for-profit corporation that is incorporated in Delaware and
has its principal place of business in San Francisco,
California
- Plaintiff Powell's Bookstore operates a bookstore in Portland,
Oregon and also maintains a Web site through which visitors can
purchase new, used, rare and out-of-print books. Powell's
Bookstore is incorporated in Oregon and has its principal place of
business in Portland, Oregon
- Plaintiff RIOTGRRL is a popular "Webzine" that advocates
positive empowerment and support for women. RiotGrrl's mission is
to foster discussion, action, and growth for women through the
Web. RiotGrrl is incorporated in Florida and has its principal
place of business in Fort Myers, Florida
- Plaintiff SALON INTERNET, INC. ("Salon Magazine") is a leading
online magazine featuring articles on current events, the arts,
politics, the media, and relationships, as well as regular columns
by well-known writers. Salon Magazine is a for-profit corporation
that is incorporated in California and has its principal place of
business in San Francisco, California
- Plaintiff WEST STOCK, INC. ("West Stock") maintains a Web site
that displays and sells licenses for stock photographs. In
addition, West Stock sells licenses to many images that are not
available on its Web site. West Stock is incorporated in
Washington and has its principal place of business in Seattle,
Washington
- Defendant ATTORNEY GENERAL JANET RENO heads the United States
Department of Justice, which is the agency of the United States
government responsible for enforcement of federal criminal laws,
including the statute at issue in this case.
FACTS
The Internet
- The Internet is a decentralized, global medium of
communications that links people, institutions, corporations and
governments around the world. It is a giant computer network that
interconnects innumerable smaller groups of linked computer
networks and individual computers. While estimates are difficult
due to its constant and rapid growth, the Internet is currently
believed to connect more than 159 countries and over 100 million
users. The amount of traffic on the Internet is doubling
approximately every 100 days
- Because the Internet merely links together numerous individual
computers and computer networks, no single entity or group of
entities controls the material made available on the Internet or
limits the ability of others to access such materials. Rather, the
range of digital information available to Internet users is
individually created, maintained, controlled and located on
millions of separate individual computers around the world
- The Internet presents extremely low entry barriers to anyone
who wishes to provide or distribute information or gain access to
it. Unlike television, cable, radio, newspapers, magazines or
books, the Internet provides the average citizen or small business
with an affordable means for communicating with, accessing and
posting content to a worldwide audience.
The World Wide Web
- The World Wide Web (the "Web") is the most popular way to
provide and retrieve information on the Internet. Anyone with
access to the Internet and proper software can post content on the
Web, which may contain many different types of digital information
-- text, images, sound, and even video. The Web is comprised of
millions of separate but interconnected "Web sites," which in turn
may have hundreds of separate "Web pages," that display content
provided by particular persons or organizations. Any Internet user
anywhere in the world with the proper software can create her own
Web page, view Web pages posted by others, and then read text,
look at images and video, and listen to sounds posted at these
sites
- To gain access to the information available on the Web, a
person uses a Web "browser" -- software, such as Netscape
Navigator, Mosaic, or Internet Explorer -- to display, print and
download documents that use hypertext transfer protocol ("http"),
the standard Web formatting language. Each document on the Web has
an address that allows users to find and retrieve it. Most Web
documents also contain "links." These are short sections of text
or image that refer and link to another document. Through the use
of these links from one computer to another, from one document to
another, the Web for the first time unifies the diverse and
voluminous information made available by millions of users on the
Internet into a single body of knowledge that can be easily
searched and accessed
- A number of search engines and directories -- such as Yahoo,
Infoseek, and Lycos -- are available free of charge to help users
navigate the Web. Once a user has accessed the search service, she
simply types a word or string of words as a search request and the
search service provides a list of sites that match the search
string.
How Individuals Access the Web
- Individuals have several easy means of gaining access to the
Web. Internet service providers ("ISPs") offer their subscribers
modem access to computers or networks linked directly to the
Internet. Most ISPs charge a modest monthly fee, but some provide
free or very low-cost access. National "commercial online
services," such as America Online, CompuServe, and Microsoft
Network, serve as ISPs and also provide subscribers with
additional services, including access to extensive content within
their own proprietary networks. In addition, many educational
institutions, libraries, businesses, and individual communities
maintain a computer network linked directly to the Internet and
thus the Web, and provide account numbers and passwords enabling
users to gain access to the network
- Most users of the Internet are provided with a username,
password and e-mail address that allow them to log on to the
Internet and to communicate with other users. Many usernames are
pseudonyms or pen names that provide users with a distinct online
identity and help to preserve their anonymity and privacy. The
username and e-mail address are the only indicators of the user's
identity; that is, persons communicating with the user will only
know them by their username and e-mail address (unless the user
reveals other information about herself through her
communications).
Other Means of Exchanging Information Through The
Web
- The Web also allows individuals to communicate in discussion
groups and chat rooms and by e-mail using hypertext transfer
protocol. Many Web sites use software applications, sometimes
called "middleware," to provide users of their sites with access
to discussion groups and chat rooms. For example, PlanetOut
sponsors a variety of discussion groups and chat rooms in which
anyone visiting its Web site can participate
- Discussion groups allow users of computer networks to post
messages onto a public computerized bulletin board and to read and
respond to messages posted by others in the discussion group.
Discussion groups have been organized to cover virtually every
topic imaginable. Chat rooms allow users to engage in simultaneous
conversations with another user or group of users by typing
messages and reading the messages typed by others participating in
the "chat.
- Online discussion groups and chat rooms create an entirely new
global public forum where individuals can associate and
communicate with others who have common interests, and engage in
discussion or debate on every imaginable topic
- Finally, it is possible to set up an account for electronic
mail, commonly referred to as "e-mail," using the Web. Several
commercial Web sites such as Yahoo and Hotmail will provide free
e-mail accounts to individuals. These accounts allow individuals
to use the Web to create, send, and receive e-mails with other
individuals. Such accounts allow individuals who do not possess
their own computer or Internet access account to establish a
permanent e-mail address and to correspond with other individuals
by using the Web at public libraries and other public Internet
access sites
- As can be seen from the various ways that individuals can
exchange information and communicate via this technology, the Web
is "interactive" in ways that distinguish it from traditional
media. For instance, users are not passive receivers of
information as with traditional broadcast media; rather, users can
easily respond to the material they receive or view online. In
addition, "interactivity" means that Web users must actively seek
out with specificity the information they wish to retrieve and the
kinds of communications in which they wish to engage. For example,
to gain access to material on the Web, a user must know and type
the address of a relevant site or find the site by typing a
relevant search string into a search engine.
The Range of Content Available on the Web
- Content on the Web is provided by the millions of Web users
worldwide, and the content ranges from art, to humor, to
literature, to medical information, to music, to news, to sexually
oriented material. For example, on the Web, one can view the full
text of the Bible, read The New York Times, or peruse an article
on the supermarket industry. One can browse through paintings from
art galleries around the world, view in detail images of the
ceiling of the Sistine Chapel, or watch a video about immigration.
The overwhelming majority of information on the Web is provided
for free to users
- At any one time, the Web serves as the global communication
medium for literally tens of thousands of political debates and
social dialogues among world-class newspapers as well as small
town citizens. Although the vast majority of the information on
the Web is not sexually oriented, there is material available on
the Web that might be considered "harmful to minors" in some
communities. For example, a Web user can access the entire Starr
Report and related discussions, explicit safer-sex information,
pictures by well-known artists such as Robert Mapplethorpe and
Andres Serrano, and videos about AIDS
- The Web provides tremendous opportunities for individual
entrepreneurs, start-up companies, and home-based businesses, as
well as businesses that also exist in the offline world. There are
currently a wide range of individuals and companies communicating
on the Web for commercial purposes, from booksellers and online
magazines to party suppliers and pizza parlors. It is not possible
to know the exact number of sites, but the percentage of sites
that are run by profit-making enterprises has increased over time.
The number of such sites is now more that 400,000 and may well be
over one million.
The Impact of the Act on the Web
- Because of the nature of the Web, the Act will ban a wide
range of constitutionally protected speech among adults
- The Act purports to restrict only content provided on the Web
"for commercial purposes," but in fact it explicitly bans a wide
range of protected expression that is provided for free on
the Internet by individuals and organizations. 47 U.S.C. Sec.
231(a)(1). The Act does not address the commercial sale of
content; in fact, providers who sell their content are explicitly
exempt from the Act when the buyer pays by credit or debit
card. 47 U.S.C. Sec. 231(c). Rather, the Act targets all other
communications made publicly accessible on the Web "for commercial
purposes," defined very broadly as being "engaged in the business
of making such communications." 47 U.S.C. Sec. 231(e)(2)(A). The
Act's definition of a person "engaged in the business" explicitly
states that "it is not necessary that the person make a profit"
nor that the making of the communications be the person's
"principal business." 47 U.S.C. Sec. 231(e)(2)(B). Just like many
traditional print newspapers, bookstores, and magazine publishers,
many Web publishers make a profit (or attempt to make a profit)
through advertising. In addition, content providers such as online
booksellers, music stores, and art vendors allow potential
customers to browse their content for free -- similar to browsing
in a non-virtual book store or art gallery. Finally, some online
content providers make a profit by charging their content
contributors, although users may access the content for free.
Thus, the Act impacts a wide range of providers of free content,
from fine art to popular magazines to news and issue-oriented
expression
- The Act applies to all communications on the Web that are
"available to any minor." Because all free content on the Web is
"available to" both adults and minors, the Act on its face applies
to communications between adults. Given the technology of the Web,
there are no reasonable means for speakers who provide information
for free to ascertain the age of persons who access their speech,
or to restrict or prevent access by minors. From the perspective
of these speakers, the information that they make available on the
public spaces of the Web must either be made available to all
users of the Web, including users who may be minors, or not made
available at all
- The Act attempts to provide affirmative defenses to criminal
liability, none of which are technologically or economically
available to plaintiffs and other providers of free content on the
Web. Section 231(c)(1)(A) provides an affirmative defense if the
defendant restricts access by "requiring use of a credit card,
debit account, adult access code, or adult personal identification
number." Section 231(c)(1)(A) is identical to a defense in the CDA
that was found unavailable to content providers in Reno v.
American Civil Liberties Union, 521 U.S. at __, 117 S. Ct. at
2339 n.26 & 2347. Financial institutions will not verify a
credit card in the absence of a financial transaction, so the
option of requiring a credit card is completely unavailable to
content providers who provide their speech for free. Validation by
a debit card would also require a financial transaction and so is
unavailable for free content providers. Setting up an adult
identification system before providing access to free content is
economically and technologically infeasible for the vast majority
of content providers covered by the Act
- Section 231(c)(1)(B) provides an affirmative defense if the
defendant "accept[s] a digital certificate that verifies age."
This defense is technologically and economically infeasible for
the vast majority of content providers covered by the Act
- Section 231(c)(1)(C) provides an affirmative defense if the
defendant takes "other reasonable measures that are feasible under
available technology" to restrict access by minors. As discussed
above, there are no other reasonable means available to content
providers covered by the Act. This defense, too, is similar to a
defense in the CDA that was found unavailable to content providers
in Reno v. American Civil Liberties Union. See id.
- Even if age or credit card verification were technologically
or economically feasible, such requirements would fundamentally
alter the nature and values of the new computer communication
medium, which is characterized by spontaneous, instantaneous,
albeit often unpredictable, communication by hundreds of thousands
of individual speakers around the globe, and which provides an
affordable and often seamless means of accessing an enormous and
diverse body of information, ideas and viewpoints.
Pre-registration or screening requirements would undermine the
unique characteristics of this new technology
- Age verification and identification requirements would also
make it impossible for online users to access constitutionally
protected speech anonymously. Even if it were economically and
technologically feasible for speakers to verify the age of their
readers, the Act would require readers to provide personally
identifiable information in order to access speech for free. This
is implicitly acknowledged by Section 231(d) of the Act, which
forbids the further disclosure of "any information collected for
the purposes of restricting access to such communications" to
minors. 47 U.S.C. Sec. 231(d)(1)(A). The inability to access
speech anonymously would deter many users from accessing sensitive
or controversial speech covered by the Act
- In addition, requiring users to provide identifying
information prior to being able to even browse a site to determine
what it offers will deter users from entering those sites, and
will reduce the commercial opportunities provided to plaintiffs
and other speakers using the Web. Requiring adults to identify
themselves before they can access speech defined as "harmful to
minors" will also stigmatize that speech and thus deter access to
protected speech.
The Ineffectiveness of the Act and the Effectiveness of
Alternative Means
- Because of the global nature of the Internet, defendants
cannot demonstrate that the Act would likely reduce the
availability of sexual content on the Web to minors in the United
States
- At least 40% of the content provided on the Web originates
abroad. All of the content on the Web is equally available to all
Web users worldwide and may be accessed as easily as content that
originates locally. Because it is not technologically possible to
prevent content posted abroad from being available to Web users in
the United States, the Act will not accomplish its purported
purpose of keeping sexually oriented content from minors in the
United States
- Conversely, there are many alternative means that are more
effective at assisting parents in limiting a minor's access to
certain material if desired
- Commercial online services like America Online, Prodigy, and
CompuServe provide features to prevent children from accessing
chat rooms and to block access to Web sites and newsgroups based
on keywords, subject matter, or specific newsgroups. These
services also offer screening software that blocks messages
containing certain words, and tracking and monitoring software to
determine which resources a particular online user (e.g., a
child) has accessed. They also offer children-only discussion
groups that are closely monitored by adults
- Online users can also purchase special software applications,
known as user-based blocking programs. These applications allow
users to block access to certain resources, to prevent children
from giving personal information to strangers by e-mail or in chat
rooms, and to keep a log of all online activity that occurs on the
home computer
- User-based blocking programs are not perfect, both because
they fail to screen all inappropriate material and because they
block valuable Web sites. However, a voluntary decision by
concerned parents to use these products for their children
constitutes a far less restrictive alternative than the Act's
imposition of criminal penalties for protected speech among
adults
- Congress has recognized the usefulness of such user-based
blocking programs through another provision enacted along with the
Act, and not being challenged here, that requires Internet service
providers to "notify [all new customers] that parental control
protections (such as computer hardware, software or filtering
services) are commercially available that may assist the customer
in limiting access to material that is harmful to minors." 47
U.S.C. Sec. 230(d)
- Congress itself has recognized that it did not adequately
research other alternatives before passing the Act. Another
provision passed alongside the Act calls for the establishment of
a Commission to "conduct a study to identify technological or
other methods that -- (A) will help reduce access by minors to
material that is harmful to minors on the Internet; and (B) may
meet the requirements for use as affirmative defenses for purposes
of section 231(c)" of the Act. If Congress had properly researched
this issue before passing the Act, it would have realized that
there are other less restrictive alternatives than the criminal
and severe civil penalties imposed by the Act.
Relationship of Plaintiffs to the Act
- Because all communications on the Web are available throughout
the United States as well as the world, all plaintiffs engage "in
interstate or foreign commerce." 47 U.S.C. Sec. 231(a)(1)
- Plaintiffs fear prosecution under the Act for communicating,
sending, displaying, or distributing material that might be deemed
"harmful to minors" by some community in the United States.
Plaintiffs and/or their members all provide material for free on
the Web "for commercial purposes" that they believe to be valuable
for adults, but that they fear could be construed as "harmful to
minors" in some communities
- Plaintiffs also fear civil penalties under the Act for their
online communications. A federal prosecutor anywhere in the
country could seek civil penalties of up to $50,000 for each day
of violation simply by filing a civil complaint against one of the
plaintiffs and proving merely by a preponderance of the evidence
that the plaintiff had communicated material that the local
community believes is "harmful to minors.
- Plaintiffs also fear liability for material created by others
that is available on their Web sites and Web-based online
discussion groups and chat rooms. The Act contains an exemption
for providers "engaged in the transmission, storage, retrieval,
hosting, formatting, or translation (or any combination thereof)
of a communication made by another person, without selection or
alteration of the content of the communication." 47 U.S.C. Sec.
231(b)(4). Elsewhere, however, the Act states that it applies to a
person who "knowingly solicits . . . material to be posted on the
World Wide Web." 47 U.S.C. Sec. 231(e)(2)(B). Plaintiffs fear that
Section 231(b) will not exempt them from prosecution or civil
penalties because they will be found to have "solicited" or
"selected" the communications for publication on their sites
- Plaintiffs do not understand what the Act prohibits, and are
thus unable to determine with certainty what speech is prohibited
by the Act and what speech is not. For example, they do not know
the relevant "community" for determining what is "harmful to
minors" on the global Internet. They do not know whether their
speech will be prohibited if it is found to be "harmful" to very
young minors even if it has value to older minors. They do not
know what comprises a work "considered as a whole" in the context
of speech on the Web, which is a seamless, interconnected set of
texts, sound and graphics provided by different content providers
and located on different computers around the world. Finally, they
do not understand what would constitute "reasonable measures that
are feasible under available technology" that are sufficient to
provide an affirmative defense under the Act
- The defenses provided in the Act are technologically and
economically unavailable to the plaintiffs. Even if plaintiffs
could comply with the Act, plaintiffs believe that the Act's
registration requirements would deter a substantial proportion of
its users who would not access their speech because they could no
longer do so anonymously. Thus, the Act would significantly
diminish the audience for plaintiffs' speech and would
economically burden the plaintiffs as a result
- Plaintiffs have no way to comply with the Act and are left
with two equally untenable alternatives: (i) risk prosecution or
civil penalties under the Act, or (ii) attempt to engage in
self-censorship and thereby deny adults and older minors access to
constitutionally protected material.
American Civil Liberties Union
- The American Civil Liberties Union (the "ACLU") is a
nationwide, nonpartisan organization of nearly 300,000 members
dedicated to defending the principles of liberty and equality
embodied in the Bill of Rights including First Amendment free
speech rights
- Many ACLU members use the Web to communicate on a wide variety
of subjects for commercial purposes. Some members provide free
content on the Web which they fear will make them subject to
criminal and civil liability under the Act. The ACLU also has a
broad spectrum of members who use the Web to access material.
These members fear the Act will deny them access to many valuable
resources
- Many ACLU members are minors, including both high school and
college students, who will be directly affected by this Act. These
members use the Web to do school homework and seek information on
a vast range of subjects. The Act will block the availability to
these members of much information on political and social
subjects.
Some of the ACLU members who fear liability under the Act
include:
- Nadine Strossen: Nadine Strossen is a member of the
ACLU and has been president of the ACLU since 1991. Ms. Strossen
is a professor at New York Law School and has written extensively
regarding individual liberties. Ms. Strossen is the author of the
book Defending Pornography: Free Speech, Sex, and the Fight for
Women's Rights (Anchor, 1996)
- Currently, Ms. Strossen is a paid contributing monthly
columnist for the online magazine Intellectual Capital. The
Intellectual Capital magazine is supported by advertising revenue
and provides all of its content for free on the Web. Ms.
Strossen's column in Intellectual Capital regularly and frankly
discusses topics such as homosexuality, sex, pornography and
censorship. Ms. Strossen believes that her publications on the Web
have social, political and educational value for adults and
minors
- Ms. Strossen's staunch defense of civil liberties has
engendered criticism and hostility from individuals and groups
across the political spectrum. In Ms. Strossen's experience, the
defense of sexual expression is one of the most controversial and
provocative issues in our society. Indeed, on several occasions
there have been attempts to censor Mr. Strossen's speech on this
issue, including attempts in Cincinnati, Ohio and in Ventura,
California. Thus, Ms. Strossen believes that some people may find
her frank treatment of issues involving sex to be "harmful to
minors." Ms. Strossen believes that her essays and the discussions
by readers are valuable exchanges of ideas regarding important
issues, and she does not plan to self-censor her column. As a
professional writer publishing on the Web, Ms. Strossen fears that
she may be subjected to criminal and civil penalties under the
Act.
- Lawrence Ferlinghetti: Lawrence Ferlinghetti is a
member of the ACLU. Mr. Ferlinghetti is San Francisco's poet
laureate and has authored two novels and more than a half-dozen
collections of poetry, including A Coney Island of the
Mind. Mr. Ferlinghetti is the co-founder and owner of both
City Lights Bookstore, founded in 1953, and City Lights
Publishing, a book publisher founded in 1955, which are located in
San Francisco, California
- In 1956, Mr. Ferlinghetti's City Lights Publishing published
Allen Ginsberg's poem "Howl," and Mr. Ferlinghetti sold the poem
at his City Lights Bookstore. As a result, Mr. Ferlinghetti was
arrested and tried for publishing and selling obscene material.
After a lengthy trial, at which Mr. Ferlinghetti was represented
by the ACLU, he was acquitted of these charges
- City Lights Books currently has a Web site that promotes books
available from the bookstore and publisher. The Web site also
contains lists of literary events and a brief history of City
Lights Bookstore and Publishing. City Lights Books plans to expand
its Web site to include excerpts from the books and poems that
City Lights publishes. The City Lights Web site also has a section
with a brief history of the "Howl" obscenity trial and photographs
from the trial and has plans to expand this section of the Web
site by adding excerpts from the poem. Also, Mr. Ferlinghetti's
work is available on a variety of poetry sites on the Web
- In Mr. Ferlinghetti's experience, there are people who would
find his work and the work he publishes "harmful to minors." Mr.
Ferlinghetti will not self-censor his Web site and therefore fears
that, as owner of City Lights Books, the content of his Web site
will subject him to criminal prosecution or severe civil penalties
if the Act is allowed to stand.
- Patricia Nell Warren: Patricia Nell Warren is a member
of the ACLU. Ms. Warren is a former Reader's Digest editor and the
author of seven novels, four books of poetry and numerous
articles, poems and essays. Ms. Warren's novel The Front
Runner was on The New York Times best-seller list and
continues to be one of the best-selling gay novels of all time
- Ms. Warren is also the co-founder and co-owner, with Tyler St.
Mark, of Wildcat Press. Ms. Warren promotes Wildcat Press' books
on the Internet at the Wildcat Press Web site. Some of the
material in Wildcat Press' publications is sexually explicit or
contains vulgar language. The Web site includes reviews of and
excerpts from Ms. Warren's books, articles and commentaries
written by Ms. Warren, and the YouthArts Project which Ms. Warren
founded and supports
- The content of the book excerpts and articles by Ms. Warren
generally deal with gay and lesbian issues. In Ms. Warren's
experience, there are many people in society who are openly
hostile to and discriminate against homosexuals. Indeed, Ms.
Warren has faced repeated attempts to ban her books at libraries.
Ms. Warren fears that material which discusses gay and lesbian
issues will be found to be "harmful to minors" in some
communities, even if it does not contain sexually explicit
material
- Also, some of the excerpts and articles, such as "Looking for
Mr. Goodbar . . . Gay Style," frankly discuss gay and lesbian sex.
Further, Wildcat Press sponsors the online youth publication
YouthArts Project, which publishes poetry, fiction, essays, fine
art, and photography by contributors age 25 and under and is
targeted to an audience that includes teenagers. In Ms. Warren's
experience, many people would find any discussion of young people
exploring their homosexuality to be "harmful to minors.
- Because Ms. Warren believes that the speech provided on the
Wildcat Web site is socially, educationally and politically
valuable, she does not currently plan to self-censor the Wildcat
Web site. Thus, as owner and sponsor of the Web site, Ms. Warren
fears that she could face civil and criminal penalties for both
her work and the work of others she publishes on the Web. In
addition, Ms. Warren fears that the expense of defending against
even an unfounded prosecution or civil law suit brought under the
Act would force the Wildcat Press out of business.
- David Bunnell: David Bunnell is a member of the ACLU.
Mr. Bunnell is the chief executive officer of Upside Media Inc., a
California corporation. Upside Media Inc. publishes Upside
Magazine, a print magazine, and also has a Web site on the
Internet
- Upside Magazine is primarily devoted to covering issues
related to high-tech business. The Web publication has a section
devoted to daily news and also has current and archived articles
from the print magazine Upside. The Upside Web site covers a broad
spectrum of subjects relating to the Internet, including daily
news reporting, economic reporting and analysis, and stories about
personalities, books and events
- Some of the material reported in Upside discusses sex and uses
explicit language. For instance, the Upside article "The Net's
Dirty Little Secret: Sex Sells," discusses adult Web sites on the
Internet and describes some of the content of those Web sites.
Similarly, the Upside article "Madeleine Altmann's Babes4U"
discusses female entrepreneurs who own and operate adult Web sites
on the Internet and describes some of the content of those sites.
As with other Upside articles, both of these articles provide
links to the sites discussed in the article
- Mr. Bunnell believes that the material on the Upside Web site
has social, political and educational value for adults and minors,
but he fears that some people in some communities might find some
of the material on the Upside Web site "harmful to minors."
Because Mr. Bunnell does not plan to self-censor the Upside Web
site, he fears that as chief executive officer in charge of Upside
Media Inc., he would be subject to criminal prosecution or civil
fines or both if the Act is allowed to stand
- All of the above ACLU members, and other ACLU members not
specifically mentioned, fear prosecution or enforcement under the
Act for displaying material that might be considered "harmful to
minors."
Androgyny Books, Inc. d/b/a A Different Light
Bookstores
- Plaintiff Androgyny Books, Inc. d/b/a A Different Light
Bookstores maintains a Web site through which visitors can
purchase books and music of interest to gay and lesbian
individuals and can receive information about the gay and lesbian
community. A Different Light Bookstores aims to stock every book
in print by, for, and about the lesbian, gay, bisexual, and
transgender communities. A Different Light has operated retail
bookstores since 1979 and today has stores in New York, San
Francisco, and West Hollywood. The Web site receives approximately
1500 hits each week. A Different Light has processed over 1500
orders over its Web site since it was developed in 1995
- Users of A Different Light's Web site receive an enormous
amount of information about the gay and lesbian community.
Visitors can search through the "bookshelves" located on the site
for books about gay and lesbian issues or by gay and lesbian
authors. They can choose from among its over 21,000 book titles in
sixty categories, including poetry, travel, psychology, recovery,
parenting, and history. A Different Light's Web site sells books
about such individuals as Carson McCullers, Tennessee Williams,
Ellen DeGeneris, and Greg Louganis. Music and books on tape are
also available for purchase on the site. A Different Light also
offers e-mail versions of catalogs selling material of general
interest or devoted to specific topics such as business, law,
education, religion, coming out, and spirituality. In addition,
the Web site announces recent books, offers book reviews, provides
profiles of authors, and publishes essays. After obtaining a free
subscription, users may receive a schedule of events occurring at
A Different Light's three stores or otherwise sponsored by A
Different Light. These announcements can then be viewed by anyone
who accesses the Web site
- Plaintiff A Different Light fears prosecution under the Act
because its Web site contains material that may be considered
"harmful to minors." A Different Light fears that, because its Web
site is devoted to gay and lesbian literature, music, and
information, all of its content may be considered "harmful to
minors" in some communities. In addition, some of the books A
Different Light sells contain sexually explicit, or otherwise
adult, material. For instance, A Different Light sells such titles
as Boys Behind Bars: True Homosexual Accounts by Boyd and
Mammoth Book of New Erotica by Jakubowski. In addition,
some of the content published in essays or excerpts of books
contains sexually explicit material. For example, in a story
entitled "Shame On Me" - which appears on A Different Light's Web
site as an excerpt from Sundays at Seven, America's
longest-running gay reading series, edited by Rondo Mieczkowski
and compiled by James Carroll Pickett - Gavin Geoffrey Dillard
explicitly describes many homosexual sexual encounters.
Significantly, some titles themselves, as they appear on the Web
site, are sexually suggestive or contain strong adult language
- Plaintiff A Different Light does not require visitors to
identify themselves to access the information and services
available on its Web site. Although A Different Light provides all
of the information on its Web site for free to users, it requires
individuals who purchase items from the Web site to provide credit
card information for billing purposes
- Plaintiff A Different Light believes all members of society,
including minors as well as adults, are interested in and benefit
from the services provided on its Web site. A Different Light
believes its presence and materials provide a necessary reference
for gays and lesbians of all ages who are discovering their
sexuality. Therefore, for the reasons set forth in this complaint,
A Different Light does not intend to self-censor its Web site in
any way as a result of the Act.
American Booksellers Foundation for Free
Expression
- Plaintiff American Booksellers Foundation for Free Expression
("ABFFE") has hundreds of bookseller members from coast to coast,
many of whom sell materials that contain nudity or descriptions of
the nude human body, and which deal frankly with the subject of
human sexuality. ABFFE's members are not "adult bookstores." Some
member bookstores have their own Web pages that discuss the
content of books sold in stores. For instance, the Sisterhood
Bookstore, in Los Angeles, California has an extensive Web site
which lists many of the books it sells, often with pictures of the
books, covers and descriptions of their content. Because many of
the books sold by Sisterhood Bookstore are about feminism,
lesbianism and sex, its owners fear that some communities would
find its Web site "harmful to minors" under the Act
- Most member bookstores use the Web to obtain information and
excerpts of books from publishers. For example, member booksellers
may review current popular titles such as Primary Colors by
Anonymous and Sabbath's Theatre by Philip Roth, which
include passages describing nudity and sexual conduct
- ABFFE members' right to learn about, acquire, and distribute
materials containing nudity and sexual conduct, and their patrons'
right to purchase such materials, would be seriously infringed by
the Act if it is not enjoined because ABFFE members and the
publishers with which they transact business would be forced to
self-censor or risk prosecution or civil penalties under the Act.
ArtNet Worldwide Corporation
- Plaintiff ArtNet Worldwide Corporation ("ArtNet") is the
leading vendor of fine art of the Web. ArtNet's Web site also
provides a variety of information and services about art. For
example, the Web site lists events occurring around the world --
such as art exhibitions, auctions, art fairs, and museum shows --
and allows the user to view samples of the art available at those
events. ArtNet's Web site also contains postings of individual
artists, who describe their art and exhibit individual works for
sale. The Web site also provides information about specific shops
and galleries that sell art and antiques. ArtNet also lists art
services, such as framing and restoration, available across the
United States. In addition, the Web site contains a magazine
providing news articles, editorials, and art criticism written by
its own correspondents and gathered from external sources.
Moreover, Web site visitors can post and find listings for art
related job opportunities available around the world. ArtNet also
provides chat rooms where users can promote their own art, buy and
sell art and related items, and discuss art in general. ArtNet
believes that minors as well as adults are interested in and
benefit from the information and services provided on its Web
site
- ArtNet funds its Web site by selling space on it to
advertisers and to sellers of art and related items, such as
artists, galleries, and shops
- Plaintiff ArtNet fears prosecution under the Act because its
Web site contains material that may be considered "harmful to
minors." For example, some of the art exhibited for sale on ArtNet
by art galleries and private artists depicts nudity. Examples of
such displays of nudity are "Dancing Nude" by Robert d'Amore and
several works by Andrea Greeven, including "Object Lessons #1" and
"Object Lessons #2," which focus on male genitalia and female
breasts, respectively. Occasionally, such art contains sexual
imagery. For example, Andrea Greeven's "Lovers" depicts a nude
male advancing toward a reclining nude female. In addition,
ArtNet's online magazine contains material that may be considered
"harmful to minors." For example, an article entitled "Andres
Serrano at Paula Cooper" by Paul H-O, which describes artist
Andres Serrano's photography and its exhibition in New York, is
accompanied by several very sexually explicit photographs from the
exhibition. Moreover, news articles and editorials in the magazine
may contain frank discussions about adult topics. ArtNet does not
monitor the content of its chat rooms, and the discussion that
occurs in them may include topics and language that could be
viewed as "harmful to minors.
- Plaintiff ArtNet provides all of the content on its Web site
for free to Web users and does not require visitors to identify
themselves to access most of the information or services available
on its Web site. ArtNet allows the user, however, to voluntarily
supply such personal information as her name and e-mail address
before obtaining the password necessary to enter one of ArtNet's
chat rooms.
BlackStripe
- Plaintiff BlackStripe maintains a Web-based forum devoted to
same-gender-loving individuals of African descent. BlackStripe is
visited by approximately 550 visitors each day. BlackStripe is
funded, in part, by selling space on the Web site to
advertisers
- Plaintiff BlackStripe is dedicated to educating its visitors
about issues concerning same-gender-loving individuals of African
descent. BlackStripe provides a variety of information and
services. For example, the Web site contains news articles and
editorials written by its own correspondents and gathered from
external sources. In addition, the Web site provides information
about events in the Black same-gender-loving community and reviews
books, films and music. BlackStripe's Web site also provides such
unique information as the Blacklist, a list of individuals who
have made significant contributions to the Black
same-gender-loving community. The Web site also contains chat
rooms, discussion boards, and links to other Web sites. All of the
information on the BlackStripe Web site is provided to Web users
for free
- BlackStripe fears that its content could be considered
"harmful to minors" in some communities, making it vulnerable to
prosecution or civil penalties under the Act. First, BlackStripe
fears that many communications on its Web site could be deemed
"harmful to minors" merely because they discuss gay and lesbian
issues, even though they contain no sexually explicit content.
Many people including lawmakers are openly hostile to what they
call the "gay lifestyle." For example, it is possible that some
communities would find a chat room on BlackStripe inappropriate
for minors to read merely because it could involve a man seeking
to meet other men or a woman seeking to meet other women.
Moreover, the Web site's descriptions of events occurring across
the United States that are important to same-gender-loving
individuals may be considered "harmful to minors.
- Second, BlackStripe fears prosecution or civil penalties for
the materials posted on its site that are sexually oriented and
might be considered "harmful to minors" under the Act. For
example, editorials and articles may include frank discussions of
sexual issues, descriptions of sexual acts, and strong language.
For instance, James Earl Hardy's essay entitled "Black-on-Black
Love: It Ain't A ëRevolutionary Act'" and Drew Alise Timmens'
composition entitled "Theft of Sexuality" each contain sexual
language and descriptions that may be considered "harmful to
minors." In addition, exchanges in chat rooms and on discussion
boards may contain sexual language and content, including graphic
discussions regarding safer sex. BlackStripe's Web site also
provides links to other Web sites that may contain similar
material
- Plaintiff BlackStripe believes that minors as well as adults
are interested in and benefit from the information and services
provided on its Web site. BlackStripe recognizes that the Web is
often the only means for same-gender-loving minors who may be
confused about their sexuality to interact with other individuals
who have experienced similar feelings. BlackStripe believes that,
because the sense of isolation often experienced by
same-gender-loving teenagers may be even greater for those of
African descent who live in communities with few minorities, its
Web site is indispensable. BlackStripe believes that its Web site
is necessary so that individuals, including minors, across the
United States and abroad can receive information about issues
unique to the Black same-gender-loving community.
Addazi, Inc. d/b/a Condomania
- Condomania, the nation's first condom store, was established
in June 1991, in New York City. Condomania focuses on assisting
customers of every age, sex, culture and sexual orientation in
learning about and purchasing condoms and safer sex products. In
1996, Condomania launched Condomania Online, a site on the Web.
Condomania Online is the cyberspace extension of Condomania's
retail stores, featuring an online catalog, the latest safer sex
information, regularly updated newsletters and editorials, and
company information. Condomania's Web site has approximate 3,000
visitors each day. Condomania's Web site dramatically improves the
availability of safer sex products not typically found in many
parts of the country and the world. It also offers a wealth of
information to people who might not otherwise have access to the
facts about safer sex and the products available today
- Condomania's Web site contains a full color, online catalog
featuring over 250 of the most popular items from Condomania's
stores. In all, there are over 100 different condoms featured,
categorized by style so consumers can easily find the condoms that
are best suited for them. Each condom has been photographed fully
inflated so the viewer can see its actual shape, size, texture and
color. In addition, the dimensions for each condom are displayed
alongside a picture and dimensions of an "average" condom, so that
each condom can be statistically and visually compared. The Condom
Wizard, an interactive condom search guide, guides users though a
series of individualized questions, and provides product
recommendations, custom tailored to each person's needs and
preferences. The Condom Wizard is tied into the online catalogue,
so once the Wizard makes its recommendations, a viewer can click
over to detailed descriptions of each product
- In addition to condoms, the online catalog features
lubricants, t-shirts, boxer shorts, novelty items, games, books
and other products -- all related to Condomania's theme of fun,
safer sex. A "shopping cart" mechanism allows viewers who wish to
purchase a product to "drop" products into a "shopping cart" as
they go through the catalog. At the end of their shopping trip,
viewers go to a "check out stand," where they can review their
selections and make any changes. To complete a purchase, viewers
complete an online order form with their address and credit card
number, or they can print out an order form and send it to
Condomania via mail or fax
- The Condomania site also includes the seventeen-page
Condomania Safer Sex Manual, which uses frank language to educate
and help people negotiate the many issues of safer sex. Two
different monthly newsletters on the site provide additional
information on the newest products and trends in the safer sex
industry, and practical advice on how to incorporate safer sex
into one's life. The site also contains detailed information on
sexually transmitted diseases, including HIV and AIDS, and
information about Condomania's education and outreach programs,
store locations, and company history
- Condomania believes that the information that it provides may
prevent sexually transmitted disease and unwanted pregnancy among
older minors and adults and serves as a framework and a starting
point for older minors and adults who want or need to initiate
discussion about safer sex. Although Condomania believes that the
information it provides is valuable to adults and older minors and
can save lives, Condomania fears that some communities may
consider certain of its materials "harmful to minors."
Electronic Frontier Foundation
- Plaintiff ELECTRONIC FRONTIER FOUNDATION ("EFF") is a
nationwide, nonprofit organization of approximately 2,000 paying
individual members that is committed to defending civil liberties
in the world of computer communications, to developing a sound
legal framework for that world, and to educating government,
journalists, and the general public about the legal and social
issues raised by this new medium
- EFF sues on behalf of its members, who fear prosecution or
other enforcement under the statute for communicating, sending, or
displaying material "harmful to minors" in a manner available to
persons under age 17 for commercial purposes. EFF also fears that
if the statute goes into effect, content providers will be forced
to ban communications that they consider potentially "harmful to
minors," thereby depriving EFF's members and others who use its
online services of the ability to communicate and access
constitutionally protected speech. Some of EFF's members likely to
be harmed by the law include:
- Bill Boushka: Mr. Boushka maintains a site on the Web
called "High Productivity Publishing" ("HPPUB"). HPPUB provides
the public with commentary and analysis of current events, with a
particular emphasis on individual liberty and associated
responsibilities and obligations. On his site, Mr. Boushka has
published a copy of a book he has written entitled Do Ask, Do
Tell: A Gay Conservative Lashes Back, an expose about gays in
the military. This politically-charged text contains
subject-matter and language that might be deemed "harmful to
minors" and is available for reading, download, and purchase to
anyone interested in the topic.
- Jon Noring: Mr. Noring maintains a site on the Web
called "OmniMedia Digital Publishing." On his site, Mr. Noring
publishes electronic books, which are available to the public
through download. While access to the full texts requires a
"SoftLock" password, which must be purchased with a credit card,
any interested individual can access the first several chapters of
any text for free, without a password, to determine if s/he would
like to make a purchase. Several of the excerpts include
information that might be deemed "harmful to minors." These texts
include Fanny Hill (lesbian love scene), Perfumed
Garden (sexually explicit story), and Lightning Bolt
(sexually explicit dialogue).
- Open Enterprises Cooperative: Open Enterprises, a
worker-owned cooperative, maintains a site on the Web called "Good
Vibrations." Good Vibrations has an online store where individuals
can purchase sex toys, and erotic and sexual self-help books and
videos. The Good Vibrations site includes an antique vibrator
museum and up-to-date sex information and news. The Good
Vibrations site serves as a resource for quality products and
information, models honest communication about sexuality, and
promotes the philosophy that sex is fun and natural. All of the
information on the site is provided for free. The site is a
resource not only for Open Enterprises' customers but for sex
therapists, educators and advice columnists nationwide.
- Rufus Griscom: Mr. Griscom publishes an electronic
magazine on the Web entitled "Nerve," which is about "sexual
literature, art, and politics." The site includes stories and
essays by Pulitzer Prize winners and other acclaimed writers, as
well as hundreds of nude photographs. It also includes
NerveLink.com, a directory of 4,000 sites related to sex, health
and literature. The site contains sexually explicit language and
images that Mr. Griscom believes are fully protected for adults by
the Constitution
- All of the above EFF members, and other EFF members not
specifically mentioned, fear prosecution or other enforcement
under the statute for communicating, sending, or displaying
material "harmful to minors" in a manner available to persons
under age 17 for commercial purposes. None of the EFF members can
prevent their communications from reaching minors without also
preventing adults from accessing their speech.
EPIC
- Plaintiff Electronic Privacy Information Center ("EPIC") is a
nonprofit educational organization established in 1994 to examine
civil liberties and privacy issues arising on the Internet. In
furtherance of its mission, EPIC conducts research, pursues
litigation and testifies before Congress and other public bodies.
EPIC also publishes reports and an electronic newsletter (the
"EPIC Alert") and maintains a comprehensive Web site dealing with
online civil liberties and privacy issues that logs more than
100,000 visits each month
- Since its inception, EPIC has devoted a substantial amount of
time and resources to issues affecting free expression on the
Internet. As part of that work, EPIC coordinates the Internet Free
Expression Alliance, a coalition of organizations concerned with
proposed laws and technical standards that could impede the
ability of Internet users to publish and receive constitutionally
protected material. EPIC also examines the effects of Internet
rating systems and blocking and filtering programs designed to
restrict minors' access to "inappropriate" content. EPIC staff
frequently speak at conferences and lecture at universities and
law schools on these issues
- In December 1997, EPIC published the report, "Faulty Filters:
How Content Filters Block Access to Kid-Friendly Information on
the Internet." In researching the report, EPIC staff visited
scores of Web sites that had been blocked by a "filtered" search
engine in order to ascertain the nature of the content available
at those sites. EPIC staff review the content available at
filtered and blocked Web sites on a continuing basis in order to
assess the effect of filtering and blocking systems on Internet
expression. EPIC staff also review the content available at Web
sites containing sexually-explicit material in order to assess the
procedures, if any, employed at such sites to restrict minors'
access. In the course of these activities, EPIC staff access
material that might be deemed "harmful to minors" in some
communities
- EPIC fears that many content providers, in an attempt to
comply with the Act, may remove from their Web sites material
similar to that which EPIC staff heretofore have been able to
access. EPIC also fears that many content providers, in an attempt
to comply with the Act, may attempt to impose identification and
age verification requirements as a condition of accessing material
similar to that which EPIC staff heretofore have been able to
access without providing such identification
- Because it believes that the ability to access information
anonymously is protected under the First Amendment, EPIC does not
intend to instruct its staff to use a credit card, debit account,
adult access code, adult personal identification number, or a
digital signature at any Web site in order to access material that
might be deemed "harmful to minors" in some communities. EPIC thus
fears that the Act will limit the ability of its staff to continue
the research activities described above and inhibit its ability to
pursue its educational mission.
Free Speech Media, LLC
- Plaintiff Free Speech Media, LLC operates Free Speech Internet
Television ("FSITV"), which is a Web-based project that encourages
the democratic expression of progressive ideals through promoting,
curating and hosting independent creators of audio and video
content on the Web. FSITV's Web site is visited approximately 6000
times each day
- FSITV promotes video and audio content on the Web that is
often too candid or esoteric to be displayed through mainstream
media. FSITV believes that broadcasting such messages using the
audio or video technology available on the Web, and FSITV's Web
site in particular, is superior to dissemination through print
media because such technology allows a user to gain a greater
understanding of a particular idea by allowing her to view and
hear the speaker. In addition, FSITV promotes free speech
internationally by allowing organizations from around the world to
display political messages. FSITV may, in some cases, provide the
only forum in which organizations may broadcast speech that is
prohibited in their countries through other media. Plaintiff FSITV
believes that older minors as well as adults are interested in and
benefit from the information and services provided on its Web
site
- FSITV promotes independent audio and video creators in two
ways. First, FSITV obtains licenses to make available certain
video and audio content on its Web site. FSITV currently holds
licenses to approximately 500 video and audio files, which it
makes available from the home page on its Web site. They include
content on a wide range of topics, including human rights,
homelessness, labor issues, racism, prison conditions, sexuality,
AIDS, feminism, and environmentalism
- Second, FSITV offers a hosting service that allows members to
use FSITV's server to supplement their own Web sites with audio
and video content hosted on FSITV's server. Some of these members
post their audio and video files on pages sharing FSITV's URL;
however, many of the member Web pages are not accessible through
the FSITV home page. FSITV offers a basic hosting service for
free. FSITV also offers a "premium membership" for a fee. Premium
members may use their Web pages to display advertising banners, to
solicit advertisers or sponsors, or sell goods or services.
Premium members also gain additional storage capacity and other
advanced technical features
- Plaintiff Free Speech Media, LLC uses revenue obtained from
premium memberships to help support all aspects of the FSITV
project
- FSITV provides a forum in which paying and nonpaying members,
as well as nonmembers, may express progressive ideas. For example,
FSITV allows a Laotian organization, devoted to using non-violent
political means to fight for democracy and independence for Laos,
to disseminate its political messages on FSITV's Web site free of
charge through audio broadcasts of "Radio Free Laos." In addition,
performer Frank Moore, a paying member, provides a video entitled
"Fairy Tales Can Come True," which describes Moore's experiences
as an individual with cerebral palsy, on a site sharing FSITV's
URL. Additionally, nonmembers, as well as members, may post
comments about issues on the discussion boards provided on FSITV's
Web site
- Plaintiff Free Speech Media, LLC fears that it is vulnerable
to prosecution under the Act for speech available through FSITV's
Web site that may be considered to be "harmful to minors" in some
communities. Many audio and video messages licensed by FSITV and
available on its homepage contain frank discussions of sexual
issues, descriptions of sexual acts, and strong language. For
instance, an audio clip of a speech by Larry Kramer about AIDS is
rife with adult language. Additionally, many messages, including
AIDS Community Television's "Oral Sex and HIV Transmission, Parts
1 & 2," contain candid and explicit discussions about safer
sex. Moreover, audio and video content posted by members may be
considered "harmful to minors." For example, videos posted on
www.freespeech.org/eroplay by Frank Moore, such as those entitled
"Out of Isolation" and "In the Mess," contain nudity and sexual
imagery
- FSITV makes all of the information on its Web site available
to users for free. FSITV does not require users of the content on
its site to identify themselves to access the available
information. FSITV allows the user, however, to voluntarily supply
her e-mail address and sends updates concerning FSITV to that
address by periodic e-mail newsletters
- Plaintiff Free Speech Media, LLC does not intend to
self-censor FSITV's Web site in any way, and thus fears
prosecution or civil penalties as a result of the Act.
Internet Content Coalition
- Plaintiff INTERNET CONTENT COALITION (the "ICC") is a
nonprofit professional association of providers of original
content for the Internet. The ICC was formed to represent and
promote the interests of its membership in the establishment of
standards and practices for content, publishing, technology, and
commerce on the Internet; to educate the membership on Internet
issues; and to help the Internet remain a self-governing medium
with the highest standards of excellence
- ICC member organizations use the Web to communicate free
information for commercial purposes in a variety of ways. Some of
these organizations, like CNET, MSNBC, The New York Times, and
Time, Inc., have advertisements on their sites. Other member
organizations, like Sony Online, advertise and promote their
off-line products via the Web
- ICC members provide a variety of content that they believe has
value for adults and older minors but that they fear could may be
considered "harmful to minors" in some communities. A number of
the sites that provide news, for example, include the full text of
the Starr Report, as well as related articles, documents and
testimony. Time Inc.'s Web site, for example, includes the full
text of the Starr Report and President Clinton's and Monica
Lewinsky's testimony before the grand jury. Time, Inc. also has
discussion boards on its site, which allow users to engage in
online conversations by posting messages on different topics.
Current discussion board topics include: "Kenneth Starr -
Professional Pornographer" and "Marriage, Affairs, and Other Sexy
Stuff." Similarly, the New York Times has "forums" on its Web
site, which allow users to conduct online discussion on such
topics as "Vladimir Nabokov: Is ëLolita' a Love Story?" The
New York Times site also has a wealth of information of women's
health issues, including sexually transmitted diseases.
OBGYN.net
- Plaintiff OBGYN.net is the world's largest Internet based
network of U.S. and international obstetricians and gynecologists,
related medical practitioners and women. Each month, over 130,000
Internet users visit the OBGYN.net Web site, which is funded
through advertising and sponsorship. Advertisements are placed on
rotating banners throughout OBGYN.net and link to Web pages for
the advertising company. Sponsors receive additional benefits
beyond those of advertisers, including an expanded Web presence,
sponsorship of all Ob/Gyn conferences OBGYN.net attends worldwide,
and the right to use the OBGYN.net name and logo in its marketing
material
- The content of OBGYN.net is provided by and for women, medical
professionals, and the medical industry. In order to provide the
most helpful and useful content for women, OBGYN.net harvests the
Internet for information of interest to the physicians and
catalogs it on its Web site for easy access. Harvested content is
then reviewed by physicians for appropriateness and quality.
Currently OBGYN.net connects Internet users to over 4,000 external
links relevant to their specific interests. In addition, women can
tap into the incredible resource of OBGYN.net's "Women's Health
Forum." The different "forums" of OBGYN.net contain postings in
which women can ask questions and get answers within hours
directly from Ob/Gyn's around the world. OBGYN.net also regularly
sponsors Web-based live chats during which women can discuss a
specific health issue among themselves and with medical
professionals
- In addition, doctors from all over the world use OBGYN.net to
obtain up-to-the-minute medical information and to communicate
with their colleagues. Indeed, doctors in the Philadelphia area --
such as Dr. Jeffrey Levy, a Clinical Associate Professor at the
University of Pennsylvania -- use OBGYN.net and other Web sites in
order to access a variety of information about women's health
care. In the section of OBGYN.net for doctors, doctors also use
OBGYN.net forums to discuss products and procedures on an
international level, exchanging over 1.5 million e-mail messages
monthly. Doctors may also publish articles and customize their own
place in cyberspace through OBGYN.net. Through OBGYN.net, doctors
also have free access to Knowledgefinder, an interface to the
National Library of Medicine database Medline. In addition to its
vast library of information, OBGYN.net brings cutting edge
interactive technology to the doctors' fingertips. Interactive
components allow the visitors to interact with their peers, their
patients, and the medical industry, creating a living breathing
Web site that changes and develops as quickly as medical
science
- OBGYN.net believes that it provides an invaluable service to
women, medical professionals and the medical industry. In
particular, OBGYN.net believes that the materials its provides may
be of special interest to older female minors, who may not have
access to or the financial means to obtain other forms of medical
resources, or who may be reluctant or embarrassed to ask for or
seek the medical information that they need
- OBGYN.net believes that its resources are valuable for adults
and older minors, but fears that some communities might consider
its materials "harmful to minors," especially younger minors. For
example, OBGYN.net provides a catalogue of descriptive "links" to
sites addressing sexual health and sexuality, including "Dr. Ruth
Online" and "Planned Parenthood: Woman's Guide to Sexuality."
Furthermore, some communities might consider some of the
sex-related information in articles on certain medical issues,
such as yeast infections and genital warts, published on OBGYN.net
"harmful to minors." Finally, OBGYN.net is concerned that certain
of OBGYN.net's Web-based chats may be considered to be "harmful to
minors." For instance, on June 25, 1998, OBGYN.net hosted a chat
entitled "Contraception," during which participants discussed with
medical professionals the effectiveness of different forms of
birth control. The transcript of this chat is currently available
on the OBGYN.net Web site.
Philadelphia Gay News
- Plaintiff PHILADELPHIA GAY NEWS ("PGN Online") is the online
version of the print newspaper Philadelphia Gay News ("PGN
Print"). PGN Print is the largest and oldest gay newspaper in
Philadelphia. PGN Print has been published since 1976, and it has
a weekly circulation of 17,000 copies. PGN Online has been
published since September 1996, and it averages 1156 hits per
week
- PGN Online contains much of the same content as is found in
PGN Print. For example, PGN Online has national and local news
stories written by PGN correspondents; arts and events sections,
including regular columns and a Calendar of Events; and editorials
on a variety of political and social topics. PGN Online also has
material that is not published in PGN Print, including personal
and classified advertisements and a directory of back issues that
are available online
- PGN fears that its content could be considered "harmful to
minors" in some communities, making it vulnerable to prosecution
or civil penalties under the Act. First, PGN fears that many
communications on its Web site could be deemed "harmful to minors"
merely because they discuss gay and lesbian issues, even though
they contain no sexually explicit content. Discrimination against
gays and lesbians is still commonplace, and many people including
lawmakers are openly hostile to what they call the "gay
lifestyle." For example, PGN contains numerous descriptions of gay
and lesbian bars, newsstands and other establishments in
Philadelphia and other cities, which some people might believe are
"harmful to minors" because they will "entice" minors into
exploring gay life
- Second, PGN fears prosecution or civil penalties for the
materials posted on its site that are sexually oriented and might
be considered "harmful to minors" under the Act. For example, such
materials include a lengthy article on sex columnist Dan Savage,
an interview with gay porn star Cole Tucker, a review of the nude
gay play "Party," and a feature entitled "What is your favorite
coming-out story?" In addition, PGN Online also contains listings
of gay bars and other establishments, as well as announces the
meetings of various gay groups, such as "More Than Just Sex.
- PGN Online believes that both adults and youth have an
interest in the material it publishes. PGN Online believes that
its ability to publish online is crucial because it allows those
gays and lesbians who might feel uncomfortable obtaining a print
version of PGN to nonetheless participate in Philadelphia's gay
and lesbian community
- PGN does not currently intend to self-censor its Web site in
any way, and thus it fears prosecution or civil penalties under
the Act.
PlanetOut Corporation
- Plaintiff PlanetOut Corporation ("PlanetOut") is a leading
online content provider for gay, lesbian, bisexual and
transgendered persons worldwide. Over 500,000 visitors access
PlanetOut each month. PlanetOut funds its activities through
royalties, electronic commerce, and paid advertisements from a
wide range of sponsors
- PlanetOut provides on its Web site a variety of information
and services of interest to the gay, lesbian, bisexual and
transgendered community. For example, PlanetOut provides national
and international news, including stories written by its own
correspondents. It also provides information regarding travel,
finance, shopping, and entertainment. Other services provided by
PlanetOut include online personal advertisements and chatrooms
- PlanetOut fears that its content could be considered "harmful
to minors" in some communities, making it vulnerable to
prosecution or civil penalties under the Act. First, PlanetOut
fears that many communications on its Web site could be deemed
"harmful to minors" merely because they discuss gay and lesbian
issues, even though they contain no sexually explicit content.
Discrimination and even violence against gays and lesbians is
still commonplace, and many people including lawmakers are openly
hostile to what they call the "gay lifestyle." For example, it is
possible that some communities would find "personals" listings
inappropriate for minors to read because they involve a man
seeking to meet other men or a woman seeking to meet other women.
PlanetOut also contains numerous descriptions of gay and lesbian
bars, newsstands and other establishments throughout the United
States, which some people might believe are "harmful to minors"
because they will "entice" minors into exploring gay life.
PlanetOut's fear is bolstered by the fact that some of the
user-based screening programs currently available on the market
automatically block gay or lesbian sites, regardless of whether
sexually oriented issues are discussed on the site
- Second, PlanetOut fears prosecution or civil penalties for the
materials posted on its site that are sexually oriented and might
be considered "harmful to minors" under the Act. For example, such
materials include an online radio show hosted by sex adviser
Malcolm McKay on topics such as "Difficulties Using Condoms," chat
rooms such as "The Steam Room," and discussion groups such as
"Lesbian Libido" in which frank sexual exchanges may be
involved
- PlanetOut provides visitors to its Web site with the option of
becoming members of PlanetOut. Becoming a member involves
providing PlanetOut with certain information, including a person's
e-mail address, phone number, and age. PlanetOut does not,
however, verify that information or require membership in order
for a visitor to access any of the materials and services offered
on PlanetOut's Web site. Members receive weekly newsletters, news
headlines at their e-mail addresses, and other benefits
- PlanetOut believes that minors as well as adults are
interested in its online information. Moreover, an important part
of PlanetOut's mission is to provide an online community for gay
and lesbian teenagers, many of whom are undergoing intense
feelings of isolation and loneliness and would have no other
source of contact with the gay and lesbian community were it not
for the Internet
- Because PlanetOut believes that all of its content is vital to
the online gay and lesbian community, PlanetOut currently does not
intend to self-censor any of its online communications as a result
of the Act, and so fears prosecution or civil penalties under the
Act.
Powell's Bookstore
- Plaintiff Powell's Bookstore maintains a Web site through
which visitors can purchase new, used, rare and out-of-print books
to be mailed to them. Powell's Bookstore operates a bookstore in
Portland, which will soon be expanded to occupy over 68,000 square
feet with room for over one million books, as well as six
satellite stores. Powell's Bookstore developed a Web site for its
Technical Store in 1994 and expanded the Web site to sell books
for all other stores in 1996. Users of the Web site can choose
from titles contained in the combined inventory of all seven of
its stores. The Powell's Bookstore Web site is visited by
approximately 5000 visitors each day. Powell's Bookstore has sold
more than 300,000 books over its Web site
- The Powell's Bookstore Web site allows buyers of books around
the world access to an enormous inventory consisting of over one
million books on any given day. Visitors may search an extensive
database by title, author, subject, or key words. Depending on
availability, users may choose whether to purchase a particular
title as a new hardcover or paperback or as a used book. Visitors
to the Web site may also search Powell's Bookstore's extensive
database for rare and out-of-print books. Powell's Bookstore also
sells signed copies of certain titles. Visitors access the Web
site free of charge and provide financial information for billing
only after they have selected a title for purchase
- Plaintiff Powell's Bookstore fears prosecution under the Act
because its Web site contains material that may be considered
"harmful to minors." Powell's Bookstore lists some books that
contain sexually explicit, or otherwise adult, material. Powell's
Bookstore also carries an extensive inventory of gay and lesbian
literature, which may be considered "harmful to minors" in some
communities. Some examples of gay and lesbian titles available on
the Powell's Bookstore Web site are "Homosexuality in the
Priesthood and Religious Life" edited by Jeannine Bramick and
"Century of Gay Erotica" by Phil Andros. Significantly, some
titles themselves, as they appear on the Web site, are sexually
suggestive or contain strong adult language. For example, Powell's
Bookstore lists for sale such titles as: New Fuck You,
erotica by Eileen Myles; Penis Book, a men's health book by
Margaret Gore; and Vagina Monologues, a feminist studies
book edited by Eve Ensler
- Plaintiff Powell's Bookstore also fears prosecution under the
Act because Web sites on which it advertises, and from which users
can access its Web site, contain material that may be considered
"harmful to minors." For instance, Powell's Bookstore advertises
on Nerve.com ("Nerve"), which is a Web site devoted to "literary
smut" that publishes such content as nude photographs and erotica
in print. Many of the pages on Nerve containing sexually explicit
material also display a banner advertisement for Powell's
Bookstore through which visitors can be instantly linked to
Powell's Bookstore's Web site. Powell's Bookstore fears it could
be prosecuted under the Act for its association with sites such as
Nerve
- Plaintiff Powell's Bookstore does not require visitors to
identify themselves to access the information and services
available on its Web site. Although all of the information on its
Web site is provided for free, Powell's Bookstore accepts credit
cards from individuals who purchase books on the site.
RiotGrrl
- Plaintiff RiotGrrl is a well-known, popular online magazine
that reaches over 40,000 individual readers every month directly
through its Web site and has access to hundreds of thousands of
readers through its involvement in the Chickclick Network, a
network of linked Web sites for women and girls. Although Internet
users may read the magazine for free, RiotGrrl obtains revenue
from advertisements just like any print magazine
- "RiotGrrl" ó a tagname for women and girls in their
late teens and early twenties who advocate feminist issues
ó originally began in the early 1990's as an alternative
women's movement in response to the more male-oriented grunge rock
movement. In this vein, the mission of RiotGrrl, the online
magazine, is to provide young women with cutting edge content that
addresses what matters most in their lives, without holding back
on topics that are considered controversial or "alternative" by
mainstream publications
- RiotGrrl offers a wide range of online materials on
contemporary culture, sex and relationships, politics and personal
growth. In addition, the RiotGrrl Web site contains an "archive"
of all its past issues that Web users can easily browse through
and read. After they have registered on the RiotGrrl site by
providing their e-mail address, an alias and a password, Web users
can also participate in online conversations and forums sponsored
by RiotGrrl on such topics as sex, media, rants, and teengrrl
- RiotGrrl believes that many minors as well as adults are
interested in its online publication and its other services. In
particular, RiotGrrl believes that some of the feminist-oriented
content that it provides may be of particular interest and import
to older female minors. Although the content of RiotGrrl is
created for men and women between the ages of 18 and 30, RiotGrrl
is extremely popular with older minors between the ages of 16 and
18. These teens are savvy and an integral part of the RiotGrrl
audience, contributing to RiotGrrl in many positive ways
- RiotGrrl Web fears that a variety of its materials may be
considered to be "harmful to minors" in some communities. For
example, in one of its first few issues, RiotGrrl published an
article about MTV personality Jennie McCarthy entitled "Anatomy of
a Jack-Off Queen." A tongue-in-cheek commentary on the
sex-oriented nature of television, the article features both text
and pictures that some might find "harmful to minors." Although
this article has a header that indicates that minors should not
read the article, the Web site cannot prevent minors from reading
the article. More recent issues of the magazine include "Sexriot"
articles focusing on such issues as masturbation or a satire on
President Clinton's relationship with Monica Lewinsky. In
particular, one recent piece praised American "anime," i.e.,
overtly sexual cartoons, on the Web and included examples of this
Web art
- RiotGrrl currently does not intend to self-censor any of its
online communications, and thus fears prosecution or civil
penalties under the Act.
Salon Internet, Inc.
- Plaintiff Salon Internet, Inc. ("Salon Magazine") is a
well-known, popular online magazine. Salon Magazine includes
cutting-edge news articles; commentaries on and reviews of music,
art, television, and film; and regular columns on politics,
relationships, the media, business and other areas of interest.
The Salon Magazine Web site features the current issue of the
magazine and also includes back issues. The back issues may be
browsed by topic or date or searched for a specific issue via a
search engine on the site. After providing their e-mail addresses
and subscribing to Salon Magazine's "Table Talk," Web users may
also participate in hundreds of different online discussions on
such issues as books, sports, work life, romance, and digital
culture
- Approximately 40,000 Web users access Salon Magazine's Web
site everyday. Web users may access the magazine for free. Salon
Magazine pays for the site through advertisements similar to those
in print magazines
- The Salon Magazine Web site contains a significant amount of
material that it fears could be considered "harmful to minors" in
some communities. For example, Salon Magazine has a regular column
called "Sexpert Opinion" by Susie Bright, a well-known author,
which deals with issues of eroticism, sexual politics, sexual
liberation and erotic identity in the 90's. Web readers of Salon
Magazine also can read the full text of the Starr Report and a
wide range of political and social commentaries on it, including:
"Talking Head" by Virginia Vitzthum and "The Voyeur General's
Report to Congress" by Gary Kamiya. In addition, although Courtney
Weaver's column "Unzipped" was recently discontinued as a regular
feature of the magazine, Web users can still read Ms. Weaver's
lively and entertaining commentaries on modern emotional and
sexual relationships, focusing on such issues as sexual fetishes
and preferences, Viagra, and matchmaking, by visiting Salon
Magazine's "archives." Salon Magazine believes that older minors
as well as adults are interested in its online publication and its
other services
- Salon Magazine currently does not intend to self-censor any of
its online communications, and so it fears prosecution or civil
penalties under the Act.
West Stock, Inc.
- Plaintiff West Stock, Inc. ("West Stock") maintains a Web site
that displays and sells licenses for stock photographs. West
Stock's Web site is visited by approximately 1000 visitors each
day
- Plaintiff West Stock's Web site provides potential buyers with
access to stock photographs over the Web. On its Web site, it
provides over 40,000 photographs and displays the portfolios of
over 100 photographers. Users access the site free of charge and
may select items to license. West Stock charges a fee from $10 to
$70 per photograph depending on the photograph and the license the
user chooses. Plaintiff West Stock believes that minors as well as
adults are interested in and benefit from the services provided on
its Web site
- Plaintiff West Stock does not require visitors to identify
themselves to access the information available on its Web site.
West Stock requires individuals who actually purchase licenses for
photographs to provide credit card information for billing
purposes
- Plaintiff West Stock fears prosecution under the Act because
its Web site contains material that may be considered "harmful to
minors." Several photographs displayed on the Web site contain
nudity or are sexually suggestive. In fact, the user may select
"erotic" or "nudes" as a category of photographs to view. Examples
of erotic or nude photographs include a sexually suggestive
photograph displaying nude female breasts, erotic photographs of
female buttocks, and a sexually suggestive photograph of a
partially nude male.
CAUSES OF ACTION
First Cause of Action:
Violation of Adults' Rights Under the First
and Fifth
Amendments of the United States Constitution
- Plaintiffs repeat and reallege paragraphs 1-190
- The Act violates the First and Fifth Amendments of the United
States Constitution on its face and as applied because it creates
an effective ban on constitutionally protected speech by and to
adults
- The Act violates the First and Fifth Amendments because it is
not the least restrictive means of accomplishing any compelling
governmental purpose
- The Act violates the First and Fifth Amendments because it is
substantially overbroad.
Second Cause of Action:
Violation of Older Minors' Rights Under the
First and Fifth
Amendments of the United States Constitution
- Plaintiffs repeat and reallege paragraphs 1-190
- The Act violates the First and Fifth Amendments of the United
States Constitution because it interferes with the rights of
minors to access and view material that is not harmful to them by
prohibiting the dissemination of any material with sexual content
that is "harmful to minors" of any age, despite the fact that the
material will not be "harmful" to all minors.
Third Cause of Action:
Violation of the Right to Communicate and
Access Information
Anonymously Under the First and Fifth Amendments of the United
States Constitution
- Plaintiffs repeat and reallege paragraphs 1-190
- The Act violates the First and Fifth Amendment right to
communicate and access information anonymously.
Fourth Cause of Action:
Vagueness in Violation of the First and
Fifth
Amendments of the United States Constitution
- Plaintiffs repeat and reallege paragraphs 1-190
- The Act is unconstitutionally vague, in violation of the First
and Fifth Amendments.
WHEREFORE, plaintiffs respectfully request that
the Court:
A. Declare that 47 U.S.C. Sec. 231 violates the First and Fifth
Amendments of the United States Constitution;
B. Preliminarily and permanently enjoin defendants from enforcing
the above-noted provision;
C. Award plaintiffs costs and fees pursuant to 28 U.S.C. Sec.
2412; and
D. Grant plaintiffs such other and further relief as the Court
deems just and proper.
Dated: October 22, 1998
Respectfully submitted,
__________________________
Ann Beeson
Christopher A. Hansen
John C. Salyer
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street
New York, New York 10004
(212) 549-2500
Stefan Presser
Attorney ID No. 43067
ACLU OF PENNSYLVANIA
125 South Ninth St., Suite 701
Philadelphia, PA 19107
(215) 592-1513 ext. 216
David L. Sobel
ELECTRONIC PRIVACY INFORMATION CENTER
666 Pennsylvania Ave. SE, Suite 301
Washington, D.C. 20003
(202) 544-9240
Shari Steele
ELECTRONIC FRONTIER FOUNDATION
6999 Barry's Hill Road
Bryans Road, MD 20616
(301) 283-2773
ATTORNEYS FOR PLAINTIFFS
Catherine E. Palmer
LATHAM & WATKINS
885 Third Avenue
Suite 1000
New York, New York 10022
(212) 906-1200
OF COUNSEL TO AMERICAN CIVIL LIBERTIES UNION FOUNDATION ON BEHALF OF
PLAINTIFFS AMERICAN CIVIL LIBERTIES UNION, ANDROGYNY BOOKS, INC. d/b/a
A DIFFERENT LIGHT BOOKSTORES, ARTNET WORLDWIDE CORPORATION, BLACKSTRIPE,
ADAZZI, INC. d/b/a CONDOMANIA, ELECTRONIC FRONTIER FOUNDATION,
ELECTRONIC PRIVACY INFORMATION CENTER, FREE SPEECH MEDIA, OBGYN.NET,
PHILADELPHIA GAY NEWS, PLANETOUT CORPORATION, POWELL'S BOOKSTORE,
RIOTGRRL, SALON INTERNET, INC. and WEST STOCK, INC.
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