UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

PLAINTIFFS' MEMORANDUM OF LAW
IN SUPPORT OF THEIR MOTION FOR
A PRELIMINARY INJUNCTION

TABLE OF CONTENTS

TABLE OF AUTHORITIES [as Appendix B]

PRELIMINARY STATEMENT

I. STATEMENT OF FACTS

A. Plaintiffs and Their Speech

B. The Challenged Statute 

C. The Internet 

1. The Nature of the Online Medium

2. How Individuals Access the Internet

3. Ways of Communicating and Exchanging Information on the Internet

4. The Inability of Speakers to Prevent Their Speech from Reaching Minors

5. The Availability of User-Based Filtering Programs

II. ARGUMENT

A. Plaintiffs Have a Substantial Likelihood of Success on the Merits

1. The Act Effectively Bans Constitutionally Protected Speech, and Therefore Cannot Survive Strict Scrutiny

2. The Act's Defenses Fail to Save the Act

a. Credit Card and Age Verification Are Technologically Unavailable for the Vast Majority of Online Speakers, and Impose Unconstitutional Burdens on Other Speakers

b. There Is No Other Method That Enables an Online Speaker to Ascertain the Age of Her Audience

c. There Is No Way for Online Speakers to Label or Segregate Their Speech in a Way That Could Be Automatically Blocked From Minors

d. There Are No Other "Good Faith, Effective" Actions That Speakers Could Take to Restrict Access to Minors

e. There Is No Way for Online Speakers to Know the Characteristics or Purposes of Their Audience 

3. The Act Is An Ineffective Method For Achieving the Government's Interest, and Less Restrictive, More Effective, Alternatives Are Available to Parents 

4. The Act Is Substantially Overbroad 

a. The Act's Failure to Define the Applicable Community Standard Renders It Overboard 

b. The Act Is Overbroad Because It Criminalizes Speech That Is Constitutionally Protected for Older Minors

5. The Act Is Unconstitutionally Vague

6. The Act Violates the Commerce Clause of the United States Constitution

a. The Act Is Per Se Invalid Because It Regulates Commerce Entirely Outside of the State of New York

b. The Act Is Invalid Because the Burdens It Imposes Upon Interstate Commerce Exceed Any Local Benefit

c. The Act Violates the Commerce Clause Because It Subjects Interstate Use of the Internet to Inconsistent Regulations

B. Plaintiffs Will Suffer Irreparable Harm if Preliminary Relief Is Not Granted

C. There are Sufficiently Serious Questions to Make a Fair Ground for Litigation and the Balance of Hardships Weighs in the Plaintiffs' Favor

CONCLUSION

NOTES

APPENDIX A

PRELIMINARY STATEMENT

Plaintiffs challenge New York Penal Law § 235.21(3) (the "Act"),⁽¹⁾ which imposes criminal penalties on the availability, display and dissemination of constitutionally protected speech on the Internet and other computer communications systems. The Internet has no parallel in the history of human communication. It provides millions of people around the globe with a low-cost method of conversing, publishing, and exchanging information on a vast array of subjects with a worldwide and virtually limitless audience. It also provides a foundation for new forms of community, based not on any accident of geographic proximity, but rather on bonds of common interest, belief and culture. Unless enjoined, the Act will greatly impair the tremendous speech-enhancing qualities of the Internet by reducing all of its content to a level deemed suitable for children. 

Specifically, the Act makes it a felony to use the Internet to disseminate "indecent" material that is "harmful to minors."⁽²⁾ The Act was passed despite the recent, highly-publicized decisions by three-judge panels in this Court and in the United States District Court for the Eastern District of Pennsylvania that preliminarily enjoined enforcement of portions of the federal Communications Decency Act of 1996 (the "CDA"), which also imposed criminal penalties for communicating "indecent" speech to minors over the Internet. See Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y.), appeal docketed, 65 U.S.L.W. 3323 (U.S. Oct. 15, 1996) (No. 96-595); ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa.), prob. juris. noted, 117 S. Ct. 554 (1996).⁽³⁾ After extensive evidentiary hearings on the nature of the Internet, including in-court online demonstrations, those courts unanimously held that the CDA violated the First Amendment rights of adults to communicate over the Internet. Crucial to their holdings were factual findings establishing that there is no way for the vast majority of online speakers to distinguish between adults and minors in their audience, thus requiring all speakers to reduce their speech to a level suitable for children or risk prosecution under the CDA. The Act is fatally unconstitutional for precisely the same reason -- it effectively bans adults from communicating constitutionally protected speech over the Internet.

The Act is also substantially overbroad because it criminalizes a wide range of speech that is constitutionally protected for older minors, and because it infringes on the rights of adults in communities outside of New York State. In addition, the Act is unconstitutionally vague. "Indecency" under the Act is defined as material that is "harmful to minors" according to "prevailing standards in the adult community."⁽⁴⁾ Because content on the Internet is automatically available to a worldwide audience, speakers have no way to determine which "community" is relevant, and therefore no clear way to avoid prosecution under the Act.

In addition, the Act violates the Commerce Clause of the Constitution. Because of the borderless nature of the online medium, the Act imposes restrictions on communications occurring wholly outside the State of New York, effects an impermissible burden on interstate commerce, and subjects online speakers to inconsistent state obligations.

Plaintiffs and other online speakers are currently protected from federal prosecution under the CDA. By passing the Act, the State of New York once again forced many of those same plaintiffs, and millions of other online speakers around the country, to cease engaging in constitutionally protected speech or risk criminal prosecution in New York. Thus, plaintiffs seek a preliminary injunction against enforcement of the Act because it violates the First, Fifth and Fourteenth Amendments and the Commerce Clause of the United States Constitution.

I. STATEMENT OF FACTS

A. Plaintiffs and Their Speech

Plaintiffs represent a spectrum of individuals and organizations who use the Internet to communicate, disseminate, display and access a broad range of speech.⁽⁵⁾ Plaintiffs do not speak with a single voice or on a single issue, but all engage in speech that may be regarded as "indecent" under the Act, and that is constitutionally protected for adults and older minors.⁽⁶⁾ Plaintiffs include speakers, content providers, readers, users, and Internet access providers; many of the plaintiffs assume all of these roles. Plaintiffs communicate online both within and outside of the State of New York, and plaintiffs' speech is accessible within and outside of the State of New York.

More specifically, plaintiffs include the following: 

· American Library Association, Freedom to Read Foundation, Inc., New York Library Association, and Westchester Library System are organizations devoted to protecting the interests of libraries. Libraries serve as both access and content providers on the Internet, providing their patrons with facilities to access the Internet; post their card catalogues, information about current events, and online versions of text or art from their library collections; and sponsor chat rooms.

· American Booksellers Foundation For Free Expression ("ABFFE") is a national association of general interest and specialized bookstores formed to protect free expression rights. ABFFE has many members that use the Internet and electronic communications to obtain from publishers information and excerpts, some of which contain passages that are sexually frank.

· Association of American Publishers ("AAP") is a national association of publishers of general books, textbooks, and educational materials. AAP has many members who actively use and provide content on the Internet, both creating and posting electronic products and using the Internet as a communication and promotional tool for their print publishing activities.

· BiblioBytes is a company that uses the World Wide Web (the "Web") to provide information about and to sell electronic books. BiblioBytes offers titles in a variety of genres including romance, erotica, classics, adventure and horror.

· Magazine Publishers of America ("MPA") is a national association of publishers of consumer magazines. MPA has many members that publish magazines that, in addition to being published in print form, are now or soon will be published in electronic formats available to the public on the Internet or through online service providers.

· Interactive Digital Software Association ("IDSA") is a non-profit trade association of United States publishers of entertainment software. IDSA has many members that both sell their software in retail outlets and make their entertainment software available to the public on the Internet for demonstration ("demos"), purchase and play.

· Public Access Networks Corporation ("Panix") is an Internet service provider serving subscribers located in the New York area. Panix also hosts various organizational Web pages, assists its subscribers in creating individual Web pages, and hosts online discussion groups and chat rooms.

· ECHO is an Internet service provider that provides a "virtual salon" for Internet users in the New York area. ECHO and its subscribers provide content on the Internet through the posting of Web sites, including personal home pages, and through over 50 discussion groups oriented to subscriber interests.

· New York City Net ("NYC Net") is an Internet service provider for lesbians and gay men in the New York area. NYC Net provides access services and content specifically oriented to gay and lesbian interests, including a large number of online discussion groups and chat rooms.

· Art on the Net is a non-profit organization with an international artist site ("art.net") on the Web. Art on the Net assists over 110 international artists in maintaining online studio or gallery rooms.

· Peacefire is an organization whose membership is primarily comprised of minors. Peacefire was formed to protect the right of citizens under age 18 to use the Internet. Peacefire's members use the Internet to communicate and access a wide variety of information that is valuable and constitutionally protected for older minors but that might be deemed harmful to younger minors.

· American Civil Liberties Union ("ACLU") is a national civil rights organization. The ACLU posts civil liberties information and resources on its Web site, including material about arts censorship, obscenity law, discrimination against lesbians and gay men, and reproductive freedom. In addition, the ACLU hosts unmoderated online discussion groups that allow citizens to discuss and debate a variety of civil liberties issues.

B. The Challenged Statute⁽⁷⁾

Plaintiffs challenge the Act, which amends New York Penal Law § 235.21 by adding a new subdivision 3. The Act makes it a crime for a person:

Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, [to] intentionally use[] any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor.

Violation of § 235.21(3) is a Class E felony punishable by one to four years in prison. The Act applies to both commercial and non-commercial dissemination of material, and thus specifically applies to libraries, educational institutions, and non-profit organizations.

Section 235.20(6) defines "harmful to minors" as:

that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it:

(a) Considered as a whole, appeals to the prurient interest in sex of minors; and

(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(c) Considered as a whole, lacks serious literary, artistic, political and scientific value for minors.

§ 235.20(6).

There are six affirmative defenses to criminal liability under § 235.21(3). Section 235.15(1) provides the following affirmative defense to prosecution under § 235.21(3):

In any prosecution for obscenity, or disseminating indecent material to minors in the second degree in violation of subdivision three of section 235.21 of this article, it is an affirmative defense that the persons to whom allegedly obscene or indecent material was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, educational, governmental or other similar justification for possessing, disseminating or viewing the same.

Section 235.23(3) provides the following four defenses to prosecution under § 235.21(3):

(a) The defendant made a reasonable effort to ascertain the true age of the minor and was unable to do so as a result of the actions taken by the minor; or

(b) The defendant has taken, in good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to materials specified in such subdivision, which may involve any appropriate measures to restrict minors from access to such communications, including any method which is feasible under available technology; or

(c) The defendant has restricted access to such materials by requiring use of a verified credit card, debit account, adult access code or adult personal identification number; or

(d) The defendant has in good faith established a mechanism such that the labelling, segregation or other mechanism enables such material to be automatically blocked or screened by software or other capabilities reasonably available to responsible adults wishing to effect such blocking or screening and the defendant has not otherwise solicited minors not subject to such screening or blocking capabilities to access that material or to circumvent any such screening or blocking.

Section 235.24 provides the following defense to § 235.21(3):

No person shall be held to have violated such provisions 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 do not include the creation of the content of the communication.

Exceptions to this defense for conspiracies and co-ownership situations and an employer liability defense are set out in subsections 235.24 (1)(a)-(b) and (2).

C. The Internet⁽⁸⁾

1. The Nature of the Online Medium

The Internet is a decentralized, global communications medium that links people, institutions, corporations and governments around the world. ACLU, 929 F. Supp. at 831; Shea, 930 F. Supp. at 926. Offering a range of digital information including text, images, sound and video, the Internet is a giant computer network which interconnects innumerable smaller groups of linked computer networks and individual computers.⁽⁹⁾ While estimates are difficult due to its constant and rapid growth, the Internet is currently believed to connect approximately 9.4 million host computers, 159 countries, and 40 million users. By some estimates, there will be as many as 200 million Internet users by the year 1999. ACLU, 929 F. Supp. at 831; Shea, 930 F. Supp. at 926.

The information made available on the Internet is "as diverse as human thought." ACLU, 929 F. Supp. at 842, ¶ 74. Content ranges from academic writings, to art, to humor, to literature, to medical information, to music, to news, to sexually oriented material.⁽¹⁰⁾ For example, one can view on the Internet the full text of the Bible, all of the works of Shakespeare, and numerous other classic works of literature. One can browse through paintings from museums around the world, view in close-up detail the ceiling of the Sistine Chapel, or see the latest photographs transmitted by the Jupiter space probe. Moreover, at any one time, the Internet serves as the communication medium for literally tens of thousands of global conversations, political debates, and social dialogues.

A revolutionary medium that is dramatically altering traditional views of communications and community, the Internet is distinguishable in important ways from traditional media. See ACLU, 929 F. Supp. at 843-44. For instance, "[no] single entity -- academic, corporate, governmental, or non-profit -- administers the Internet. . . . There is no centralized storage location, control point, or communications channel." Id. at 832, ¶ 11; Shea, 930 F. Supp. at 926. In addition, the Internet is a truly global medium. At least 40% of the content of the Internet originates abroad, and all of the content on the Internet is equally available to all Internet users worldwide. ACLU, 929 F. Supp. at 848, ¶ 117.

The Internet also differs from traditional media in that it provides users with an unprecedented ability to interact with other users and with content. See ACLU, 929 F. Supp. at 843-44, ¶¶ 76-80; Shea, 930 F. Supp. at 927-28. Unlike radio or television, communications on the Internet do not "'invade' an individual's home or appear on one's computer screen unbidden." ACLU, 929 F. Supp. at 844, ¶ 88. Rather, the receipt of information on the Internet "requires a series of affirmative steps more deliberate and directed than merely turning a dial." Id. at 845, ¶ 89. Because the Internet presents extremely low entry barriers to publishers and distributors of information, it is an especially attractive method of communicating for non-profit and public interest groups. Id. at 843, ¶¶ 76, 80. Also, unlike radio, television, newspapers and books, the Internet "is not exclusively, or even primarily, a means of commercial communication." Id. at 842, ¶ 75. In sum, the Internet is "a unique and wholly new medium of worldwide human communication." Id. at 844, ¶ 81.

2. How Individuals Access the Internet

Individuals have several easy means of gaining access to computer communication systems in general, and to the Internet in particular. First, many educational institutions, businesses, libraries, and individual communities maintain computer networks linked directly to the Internet and provide account numbers and passwords enabling users to gain access to the network. ACLU, 929 F. Supp. at 832, ¶ 13. For example, plaintiff Westchester Library System provides online access to its patrons through 130 computers located at its member libraries. See Complaint ¶ 99. Second, Internet service providers ("ISPs"), which generally are commercial entities that charge a monthly fee, offer their subscribers modem access to computers or networks maintained by the ISP which are linked directly to the Internet. ACLU, 929 F. Supp. at 832-33, ¶¶ 18-19. For example, plaintiffs ECHO, NYC Net and Panix provide Internet access to subscribers in a particular geographic region and may also provide access to content within their own proprietary networks. Complaint ¶¶ 115-125. Third, there are a growing number of "cyberspace cafes," where customers, for a small hourly fee, can use computers provided by the cafe to access the Internet. ACLU, 929 F. Supp. at 833, ¶ 17. Finally, individuals and organizations can establish computer bulletin board systems ("BBSs"), which are usually stand-alone computer communication systems independent of the Internet that allow subscribers to dial directly from their computers into a BBS host computer. Id. at 833-34, ¶ 20.

3. Ways of Communicating and Exchanging Information on the Internet

Most users of the Internet are provided with a username, password and electronic mail (or "e-mail") address that allow them to sign on to the Internet and to communicate with other users. Many usernames are pseudonyms or pen names known as "handles"; these "handles" provide users with a distinct online identity and help to preserve their anonymity. The username and e-mail address are the only indicators of the user's identity; that is, persons communicating with the user will know them only by their username and e-mail address (unless the user reveals other information about herself through her messages).

Once an individual signs on to the Internet, there are a wide variety of methods for communicating and exchanging information with other users. See generally ACLU, 929 F. Supp. at 834-38, ¶¶ 22-48; Shea, 930 F. Supp. at 927-30. The primary methods are:

E-Mail: The simplest and perhaps most widely used method of communication on the Internet is via e-mail. E-mail allows an online user to address and transmit an electronic message to one or more people, "comparable in principle to sending a first class letter." ACLU, 929 F. Supp. at 834, ¶ 23.

Online Discussion Groups: In addition, there are a wide variety of online discussion forums that allow groups of users to discuss and debate subjects of interest. Thousands of discussion groups have been organized by individuals, institutions, and organizations on many different computer networks and cover virtually every topic imaginable -- creating a new, global version of the village green. The three most common methods for online discussion are mail exploders, USENET newsgroups, and chat rooms.

Mail Exploders: Mail exploders, also called listservs, allow online users to subscribe to automated mailing lists that disseminate information on particular subjects. Subscribers send an e-mail message to the "list," and the mail exploder automatically and simultaneously sends the message to all of the other subscribers on the list. Subscribers can reply to the message by sending a response to the list. ACLU, 929 F. Supp. at 834, ¶ 24. Users of mailing lists typically can add or remove their names from the list automatically, with no direct human involvement. Id.; Shea, 930 F. Supp. at 927.

USENET Newsgroups: "USENET" newsgroups are a very popular set of discussion groups arranged according to subject matter and automatically disseminated "using ad hoc, peer to peer connections between approximately