AMERICAN CIVIL LIBERTIES UNION; HUMAN RIGHTS WATCH; ELECTRONIC PRIVACY INFORMATION CENTER; ELECTRONIC FRONTIER FOUNDATION; JOURNALISM EDUCATION ASSOCIATION;COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY; NATIONAL WRITERS UNION; CLARINET COMMUNICATIONS CORP.; INSTITUTE FOR GLOBAL COMMUNICATIONS; STOP PRISONER RAPE; AIDS EDUCATION GLOBAL INFORMATION SYSTEM; BIBLIOBYTES; QUEER RESOURCES DIRECTORY; CRITICAL PATH AIDS PROJECT, INC.; WILDCAT PRESS, INC.; DECLAN McCULLAGH dba JUSTICE ON CAMPUS; BROCK MEEKS dba CYBERWIRE DISPATCH; JOHN TROYER dba THE SAFER SEX PAGE; JONATHAN WALLACE dba THE ETHICAL SPECTACLE; and PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., Plaintiffs, v. JANET RENO, in her official capacity as ATTORNEY GENERAL OF THE UNITED STATES, Defendant. 

 1. This is an action for declaratory and injunctive reliefchallenging provisions of the "Communications Decency Act of1996" (the challenged provisions are referred to hereinafter as"the Act"). One provision imposes criminal penalties for"indecent" but constitutionally protected telecommunications toindividuals under the age of 18; another criminalizes the use ofany "interactive computer service" to "send" or "display in amanner available" to a person under 18 any communication that"depicts or describes, in terms patently offensive as measured bycontemporary community standards, sexual or excretory activitiesor organs." The plaintiffs, providers of and users of computercommunication systems, assert that the Act is unconstitutional onits face and as applied because it criminalizes expression thatis protected by the First Amendment; it is also impermissiblyoverbroad and vague; and it is not the least restrictive means ofaccomplishing any compelling governmental purpose. 2. In addition, plaintiffs assert that the Act violates theconstitutional right to privacy encompassed in the First, Fourth,Fifth, and Ninth Amendments because it criminalizes private"e-mail" computer correspondence to or among individuals underthe age of 18 if the correspondence is deemed "patentlyoffensive" or "indecent." 3. Plaintiffs further assert that the Act in effectprohibits the right to anonymous speech, guaranteed by the FirstAmendment, for vast portions of the computer networks. 4. Finally, plaintiffs American Civil Liberties Union,Planned Parenthood Federation of America, Inc., and others alsoassert that 18 U.S.C. §1462(c), both before and after amendment,is unconstitutional on its face because it violates the FirstAmendment by criminalizing the distribution or reception of anyinformation via "any express company or other common carrier, orinteractive computer service" of "information . . . where, how,or of whom, or by what means any" "drug, medicine, article, orthing designed, adapted, or intended for producing abortion . . .may be obtained or made." JURISDICTION AND VENUE 5. This Court has jurisdiction pursuant to 28 U.S.C. § §1331, 1361, and 2201. Venue is proper under 28 U.S.C. §1391(e). 6. Under §561 of the Act, this action must be adjudicatedby a three-judge court convened pursuant to 28 U.S.C. §2284. PARTIES 7. Plaintiff AMERICAN CIVIL LIBERTIES UNION (ACLU) is anationwide, nonpartisan organization of nearly 300,000 membersdedicated to defending the principles of liberty and equalityembodied in the Bill of Rights. The ACLU is incorporated in theDistrict of Columbia and has its principal place of business inNew York City. The ACLU sues on its own behalf, on behalf ofothers who use its online computer communications, and on behalfof its members who use online communications. 8. Plaintiff HUMAN RIGHTS WATCH, INC. (HRW) is a leadinginternational human rights organization that monitors humanrights abuses in over 70 countries. It is incorporated in NewYork and has its principal place of business in New York City.It sues on its own behalf, on behalf of others who use its onlinecomputer communications, and on behalf of its members who useonline communications. 9. Plaintiff ELECTRONIC PRIVACY INFORMATION CENTER (EPIC)is a non-profit research organization that collects anddistributes information concerning civil liberties and privacyissues arising in the new communications media. EPIC is aproject of the Fund for Constitutional Government, a tax-exemptorganization incorporated in the District of Columbia. Both EPICand the Fund have their principal places of business inWashington, D.C. EPIC sues on its own behalf and on behalf ofothers who use its online computer communications. 10. Plaintiff ELECTRONIC FRONTIER FOUNDATION (EFF) is anationwide, nonpartisan organization of approximately 3,500paying individual members that is committed to defending civilliberties in the world of computer communications, to developinga sound legal framework for that world, and to educatinggovernment, journalists, and the general public about the legaland social issues raised by this new medium. EFF is incorporatedin California and has its principal place of business in SanFrancisco. EFF sues on its own behalf, on behalf of others whouse its online computer communications, and on behalf of itsmembers. 11. Plaintiff JOURNALISM EDUCATION ASSOCIATION (JEA) wasformed in 1924. It is incorporated in Minnesota and has itsheadquarters in Manhattan, Kansas. Its purpose is to servejournalism educators through opposing censorship of studentexpression, creating aids for curriculum and instruction,facilitating the involvement of minority students, promoting theuse of technology, and emphasizing professionalism throughcertification, workshops, conventions, and publications. It sueson its own behalf, on behalf of its members who use onlinecommunications, and on behalf of the students with whom themembers work. 12. Plaintiff COMPUTER PROFESSIONALS FOR SOCIALRESPONSIBILITY (CPSR) is a non-profit corporation incorporated inCalifornia with national offices in Palo Alto. CPSR has 22chapters in 14 states and approximately 1,550 members. Astechnical experts, CPSR members provide the public andpolicymakers with realistic assessments of the power, promise,and limitations of computer technology. As concerned citizens,CPSR members direct public attention to critical choicesconcerning the application of computing and how those choicesaffect society. CPSR sues on its own behalf, on behalf of otherswho use its online computer communications, and on behalf of itsmembers who use online communications. 13. Plaintiff NATIONAL WRITERS UNION (NWU) is a4,000-member labor union for freelance writers founded in 1983.Its members include investigative journalists, trade bookauthors, technical writers, political cartoonists, poets,textbook authors, and multimedia contributors. NWU has itsprincipal place of business in New York City. NWU sues on itsown behalf, on behalf of others who use its online computercommunications, and on behalf of its members who use onlinecommunications. 14. Plaintiff CLARINET COMMUNICATIONS CORP. is incorporatedin California and has headquarters in San Jose. ClariNetpublishes an electronic newspaper in Usenet format with 1.2million paying subscribers and a widely read humor newsgroup.ClariNet sues on its own behalf and on behalf of its subscribersand readers. 15. Plaintiff INSTITUTE FOR GLOBAL COMMUNICATIONS (IGC) isa national computer service provider that provides inexpensiveaccess to the international computer network known as theInternet, as well as other online services, primarily tononprofit organizations. It is a project of a California publiccharity; its principal place of business is in San Francisco,California. It sues on its own behalf and on behalf of otherswho use its online computer communications. 16. Plaintiff STOP PRISONER RAPE, INC. (SPR) is a nonprofitorganization dedicated to combating the problem of prisoner rape.SPR is a non-profit corporation incorporated in New York and hasits principal place of business in New York City. It sues on itsown behalf and on behalf of those who use its online computercommunications. 17. Plaintiff AIDS EDUCATION GLOBAL INFORMATION SYSTEM(AEGIS) is a nonprofit corporation incorporated in Californiathat operates a free computer bulletin board system with one ofthe largest online archives of information on HIV and AIDS in theworld. Its home computer is located in San Juan Capistrano,California. It sues on its own behalf and on behalf of thosewho use its online computer communications. 18. Plaintiff BIBLIOBYTES is a company that produceselectronic books for sale via a "World Wide Web" site on theInternet. It is incorporated in New Jersey and its principalplace of business is in Hoboken, New Jersey. It sues on its ownbehalf and on behalf of those who use its online computercommunications. 19. Plaintiff QUEER RESOURCES DIRECTORY (QRD) is one of thelargest online distributors of gay, lesbian, and bisexualresources on the Internet. It is an unincorporated association.Its system administrator resides in Reston, Virginia, itsexecutive director resides in Los Angeles, California, and itshome computer is located in Portland, Oregon. Other distributionpoint computer locations are in Maryland, California, NewZealand, the United Kingdom, Michigan, and Israel. QRD sues onits own behalf and on behalf of those who use its online computercommunications. 20. Plaintiff CRITICAL PATH AIDS PROJECT, INC. is an AIDStreatment and prevention information project that offers AIDStreatment and safer sex information via a free computer bulletinboard, electronic mailing lists, and a page on the World WideWeb. Critical Path is also an Internet Service Providerproviding free access to the Internet for both organizations andindividuals in the Philadelphia area. It is incorporated inPennsylvania and its home computer is located in Philadelphia,Pennsylvania. It sues on its own behalf, on behalf of others whouse its online computer communications, and on behalf of itsmembers who use online communications. 21. Plaintiff WILDCAT PRESS, INC. is an independentpublishing company that promotes its publications by providingfree excerpts through a World Wide Web site on the Internet. Itis a limited liability partnership and has its principal place ofbusiness in Los Angeles, California. It sues on its own behalfand on behalf of those who use its online computercommunications. 22. Plaintiff DECLAN McCULLAGH dba JUSTICE ON CAMPUSoperates a nonprofit online information clearinghouse on issuesof student free speech. The home computer is located at theMassachusetts Institute of Technology in Cambridge,Massachusetts. McCullagh also maintains a list for peopleinterested in censorship issues called "fight-censorship."McCullagh resides in Pittsburgh, Pennsylvania. He sues on hisown behalf and on behalf of those who use JUSTICE ON CAMPUS andthe fight-censorship list. 23. Plaintiff BROCK MEEKS dba CYBERWIRE DISPATCH (CWD), isthe columnist and editor of CyberWire Dispatch, a popular andirreverent online political news column available on the WorldWide Web and through a computer subscription program called alistserv. He also writes a column for HotWired, an onlinemagazine. Meeks is a resident of Fredericksburg, Virginia. Hesues on his own behalf and on behalf of those who use CYBERWIREDISPATCH and read his column in HotWired. 24. Plaintiff JOHN TROYER dba THE SAFER SEX PAGE maintainsa large archive of information about safer sex on the Internet'sWorld Wide Web. Troyer is a resident of San Francisco,California. The home computer for the Safer Sex Page is locatedin San Francisco. Troyer sues on his own behalf and on behalf ofthose who use THE SAFER SEX PAGE. 25. Plaintiff JONATHAN WALLACE dba THE ETHICAL SPECTACLE,publishes an online magazine on the Internet's World Wide Webthat examines controversial issues of ethics, law and politics inAmerica. Wallace is a resident of New York City, and rentscomputer facilities in New Jersey for purposes of housing themagazine. He sues on his own behalf and on behalf of those whouse THE ETHICAL SPECTACLE. 26. Plaintiff PLANNED PARENTHOOD FEDERATION OF AMERICA,INC. (PPFA) is the leading national voluntary health organizationin the field of reproductive health care. PPFA and its 153affiliates engage in public education and advocacy concerningsafe and legal access to all reproductive health services,including abortion, and its affiliates provide these services.PPFA operates a site on the Internet's World Wide Web, throughplaintiff IGC. PPFA is a New York State corporation with itsheadquarters in New York City. 27. Defendant ATTORNEY GENERAL JANET RENO heads the UnitedStates Department of Justice, which is the agency of the UnitedStates government responsible for enforcement of federal criminallaws, including the statute at issue in this case. FACTSEnactment of "Indecency" Standard for Cyberspace Communications28. In February, 1996, Congress adopted and the Presidentsigned the Act. In relevant part, the Act provides: "Section 502. Obscene or Harassing Use of Telecommunications Facilities Under the Communications Act of 1934. Section 223 (47 U.S.C. 223) is amended-- (1) by striking subsection (a) and inserting in lieu thereof: (a) Whoever -- "(1) in interstate or foreign communications ... "(B) by means of a telecommunications device knowingly -- "(I) makes, creates, or solicits, and "(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent knowing that the recipient of the communication is under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication; ... (2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited byparagraph (1) with the intent that it be used for suchactivity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both."(emphasis added) This provision appears in the United StatesCode as 47 U.S.C. §223(a)(1)(B) (hereinafter the "indecency"provision). 29. Subsection (h)(1) of §502(2) of the Act provides that"the use of the term telecommunications device' in this section (A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this Act; and (B) does not include the use of an interactive computer service."Because "interactive computer service" is defined broadly in theAct (see below), the definition of "telecommunications device" toexclude any "interactive computer service" leaves entirelyuncertain the meaning and scope of the statutory prohibitions forcomputer communications. 30. Section 502(2) of the Act adds to 47 U.S.C. §223, inpertinent part: "(d) Whoever -- (1) in interstate or foreign communications knowingly (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or (2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both."(emphasis added). This provision appears in the United StatesCode as 47 U.S.C. §223(d)(1)(hereinafter the "patently offensive"provision). 31. Subsection (h)(2) of §502(2) of the Act provides that"[t]he term `interactive computer service' has the meaningprovided in section 230(f)(2)." Section 230(f)(2) defines"interactive computer service" to mean "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or service offered by libraries or educational institutions." 32. The provisions described in this section becameeffective immediately upon passage of the Act. 33. No definition is given in the Act for the term"indecent." The Federal Communications Commission, however, hasinterpreted the prohibition of "indecent" radio and televisionbroadcasts under 18 U.S.C. §1464 to cover communications that"depict or describe, in terms patently offensive as measured bycontemporary community standards for the broadcast medium, sexualor excretory activities or organs." The Commission has ruledthat this definition includes the use of common Anglo-Saxonstreet terms for sexual or excretory functions, as well as sexualinnuendos and double entendres. In addition, the Commission hasruled that communications with substantial literary, artistic,political, scientific, or other educational or social value, maybe "patently offensive" or "indecent." 34. The Act contains two provisions that appear toestablish partial defenses to criminal liability. Section 502adds to 47 U.S.C. §223 a new subsection (e), which provides that"[i]n addition to any other defenses available by law: (1) No person shall be held to have violated subsection (a) or (d) solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication."Various exceptions to this defense are set out in subsections(e)(2), (3), and (4), for conspiracies, co-ownership situations,and employer liability. 35. In addition, new 223 U.S.C. §223(e)(5) provides adefense for any person who "(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or (B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number."New §223(e)(6) permits the Federal Communications Commission to"describe measures which are reasonable, effective, andappropriate to restrict access to prohibited communications undersubsection (d)," but does not authorize the Commission to enforcethe Act or approve such measures. 36. Section 509 of the Act may provide a different defenseto liability. Section 509 adds a new section, §230, to Title 47of the United States Code. Section 230(c)(1) provides: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."This section appears to conflict with new 47 U.S.C. §223(e),which only provides a defense if a "facility, system, or network"on which "indecent" or "patently offensive" material appears isnot under the "control" of the person who provides access. 37. Before passing this Act, Congress made no findingsabout alternative, less restrictive means of accomplishing thegoals of the Act.The Nature of the Online Medium 38. Online services use computers, phone lines, and modemsto connect users to networks that allow them to communicate withthousands of other users throughout the world, and to accessextensive information databases from a variety of sources. Mostonline services offer a package of services that can include:electronic mail to transmit private messages to one or a group ofusers or to an established mailing list on a particular topic;chat rooms that allow simultaneous online discussions; discussiongroups in which users post messages and reply to online "bulletinboards"; informational databases; and access to the Internet. 39. Textual, audio, and video files can all be exchangedthrough computer communications networks if the user has theright computer hardware and software. 40. The Internet is the largest online network in theworld. It links a large number of smaller networks set up byuniversities, industry, nonprofit organizations, and government.While estimates can only be approximations due to rapid growth,the Internet is believed to connect at least 59,000 computernetworks, 2.2 million computers, 159 countries, and 40 millionusers. The Internet has no centralized distribution point. 41. Many users are connected to the Internet through anInternet Service Provider (ISP). ISPs provide connections,software, and tools for using the Internet. Like the largecommercial online services, ISPs also often host onlinediscussion groups and chat rooms that are housed and maintainedthrough the ISP's computers. 42. Some businesses and institutions have a directconnection to the Internet, which means they are part of the vastnetwork of computers that comprise the Internet. Manyuniversities in the United States are directly connected to theInternet and provide accounts on their participating computer tostudents, faculty, and staff. 43. Some online services provide content as well as accessto computer networks. That is, in addition to providing thetechnical ability to subscribers to send and receive informationand messages, some online services create their own informationdatabases. 44. Electronic mail, or e-mail, is the most basic onlinecommunication. Users are given a personal e-mail address thatallows them to exchange messages or files with other persons andorganizations that have Internet e-mail addresses. 45. "Gopher" is a popular way to create and accessdatabased information on the Internet. Gopher is a menu-drivenprogram that allows the user to "gopher" through multiple layersof menus to search for information on a particular topic. A"gopher site" is a database that provides content associated witha particular person or organization. As a reference service,gopher sites often include links to related gopher sites that areassociated with other organizations or persons. 46. The "World Wide Web" (Web) is a popular way to createand access databased information on the Internet. The World WideWeb contains sophisticated graphics and audio files in additionto text files. Web sites are databases that provide contentassociated with a particular person or organization; they allowusers to link instantly to other documents and Web sites byclicking on highlighted words in the text of the document beingviewed. 47. "Online discussion groups" are hosted by onlineservices or by particular networks connected to the Internet.The host sets up a section on the network devoted to thediscussion of a particular issue and any other online user withaccess to the host network can post messages on the topic bysending an e-mail message to the discussion group. Users canalso post responses to particular messages. 48. "Online mailing lists," or "listservs" are e-maildistribution lists. Internet users subscribe to online mailinglists by sending messages from their own e-mail addresses. Anysubscriber can then send a message that is distributed to all theother subscribers on the list. 49. "Chat rooms" are sections provided by online servicesand some computer bulletin board systems in which online userscan engage in simultaneous live interactive online discussion. 50. Online discussion groups, chat rooms, and onlinemailing lists are sometimes moderated by someone not necessarilyconnected with the online service provider. Many of these"moderators" are volunteers who simply are interested in aparticular topic. The moderators review incoming messages beforethey are posted to determine whether the messages are related tothe subject matter of the group or conform to other standards setup by the moderator. 51. "Computer bulletin board systems" (BBSs) are onlinenetworks that are independent of the Internet and that usuallycater to people interested in specialized subject matter or topeople from a particular geographic region. Subscribers dialdirectly from their computers into the BBS host computer. BBSsoften offer e-mail services among users, online discussiongroups, and information databases. 52. A user with access to the Internet may use most gophersites and Web sites without providing further identification orpaying an additional fee. A user with access to newsgroups,online discussion groups, online mailing lists, and chat roomsmay generally use particular services without providing furtheridentification or paying an additional fee. 53. "Cyberspace" refers to the combination of all of theonline communications systems described above. 54. Nobody owns cyberspace, and the ability of anyone tocontrol what goes into or through online networks varies widelydepending on the nature of the system. Anyone can purchase thenecessary equipment to get online or to create her own web page. 55. Users of online systems are also content providers(that is, they are publishers), because they can transmit anddistribute their own communications and can create a permanentarchive of information accessible by other users. There is nolimit to the number of people on either side of the sending orreceiving end of computer communications. 56. Online communications are interactive. This means, inpart, that users of online systems must seek out with specificitythe information they wish to retrieve and the kinds ofcommunications they wish to engage in. It also means that userscan easily respond to the material they receive or view online. 57. Online systems provide users with a multitude ofoptions for controlling and limiting, if desired, the kinds ofinformation they access through online networks. Commercialonline services like American Online, Prodigy, and CompuServeprovide features to prevent children from accessing chat roomsand to block access to some kinds of newsgroups based onkeywords, subject matter, or specific newsgroup. They also offerscreening software that automatically blocks messages containingcertain words, and tracking and monitoring software to determinewhich resources a particular online user (e.g., a child) hasaccessed. They also offer children-only discussion groups thatare closely monitored by adults. 58. Online users can also purchase special softwareapplications to control access to online resources. Theseapplications allow users to block access to certain resources, toprevent children from giving personal information to strangers bye-mail or in chat rooms, and to keep a log of all online activitythat occurs on the home computer. 59. Once information is posted to an international onlinenetwork like the Internet, it is not possible to allow onlyresidents of a particular region or country to access thatinformation; the information becomes available to anyone in theworld who has access to the online network. There is currentlyno technological method for determining with specificity thegeographic location from which users access or post to onlinesystems. 60. Online users are given a password and user name whichthey must use in order to sign onto their online service. Whilesome users use their full proper name as their online user name,many users have online names that are pseudonyms. These userstherefore may send, view, and receive online communicationsanonymously. 61. There are forums for both "public" and "private"communications in cyberspace. E-mail and online mailing listsare private communications between specified persons or group ofpersons. Only the intended recipients of an e-mail messagereceive the message; in this sense e-mail is like regular mail.Similarly, only subscribers to an online mailing list shouldreceive the messages posted to that mailing list. Web sites,gopher sites, online discussion groups, and chat rooms, bycontrast, are public because anyone with online access can accessthem or participate in them at any time. These forums are thepublic libraries and public squares of cyberspace.Relationship of the Plaintiffs To the ActAmerican Civil Liberties Union (ACLU) 62. In addition to its legal advocacy to uphold the Bill ofRights, plaintiff ACLU has long devoted considerable resources topublic education about civil liberties. Since 1993, the ACLU'spublic education efforts have included extensive online resourcesthat offer electronic copies of ACLU publications, reports, courtbriefs, news releases, and other material related to the ACLU'slegal, legislative, educational and advocacy work. 63. The ACLU maintains its extensive online resourcesthrough America Online and the Internet's World Wide Web. Manyof the ACLU's online databases contain material of social valuethat contains sexual subject matter or vulgar language. Examplesinclude copies of ACLU court briefs in cases involving obscenity,arts censorship, and discrimination against gays and lesbians.Indeed, the ACLU has posted the text of the "seven dirty words"comic monologue which the Supreme Court ruled "indecent" in the1978 Pacifica case, and which the Court itself reproduced as anappendix to its opinion. 64. The ACLU also hosts unmoderated online discussiongroups that allow citizens to discuss and debate a variety ofcivil liberties issues. These services allow online users toexpress their uncensored views on civil liberties issues and tointeract with ACLU staff or featured speakers. Many of thecommunications in the ACLU's discussion groups have sexualcontent or vulgar language; for example, a discussion ofmasturbation in the context of the firing of former SurgeonGeneral Jocelyn Elders; the content of Howard Stern'sbest-selling book, Private Parts; a discussion of why the word"fuck" has such expressive power; and a discussion of the defenseof pornography and other erotic expression under the FirstAmendment. 65. The ACLU does not moderate its interactive servicesbecause such editing or censorship would be antithetical to theACLU's belief in freedom of speech. Furthermore, the ACLUconsiders minors to be an important audience for its onlineresources. The ability of minors to particip