I. THE CDA'S INDECENCY RESTRICTIONS CONSTITUTIONALLY ADVANCE THE GOVERNMENT'S INTERESTS IN PROTECTING CHILDREN AND IN ENSURING THAT PERSONS ARE NOT DETERRED FROM USING THE INTERNET AND OTHER INTERACTIVE COMPUTER SERVICES Congress enacted the Communications Decency Act of 1996 (CDA) Pub. L. No. 104-104, 110 Stat. 133, to protect children from exposure to sexually explicit material that is now widely disseminated on the Internet. Equally significant, Congress sought to make the Internet a resource that all Americans could use without fear that their children would be exposed to the harmful effects of indecent material. The CDA's restrictions on indecent communications constitutionally advance those interests. They prohibit persons from transmitting indecent material to children, while affording significant opportunities for adults to disseminate indecent material to other adults. Applying the principles that this Court has developed in other contexts, the CDA's restrictions are therefore facially constitutional. A. This Court Has Developed Several Principles For Evaluating The Constitutionality of Restrictions on Indecent Communications In Various Contexts This Court has not previously addressed the standards for judging the constitutionality of government restrictions on the communication of indecent material over the Internet or other interactive computer services. This Court has, however, developed principles for assessing restrictions on the dissemination of indecent material in other contexts. Those principles should guide the Court's analysis in this case as well. After identifying the basic principles in this part of the brief, we shall explain in the succeeding parts why the CDA provisions that the district court enjoined are constitutional under those principles. 1. First, because children generally do not possess the same capacity as adults to make informed choices about whether to view indecent material, and because such speech may have deep and harmful effects on children that cannot readily be undone, there is no First Amendment right to distribute indecent material to children. Thus, government regulation that prohibits the dissemination of indecent material to children, while not prohibiting dissemination to adults, is fully consistent with the First Amendment. Ginsberg v. New York, 390 U.S. 629 (1968), establishes that principle. There, the court rejected a First Amendment challenge to the constitutionality of a criminal statute that punished the sale to minors of sexually explicit magazines that were "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors." Id. at 633. In sustaining that statute, the Court found it sufficient that the State could rationally conclude that exposure to such material was harmful to minors. Id. at 641. As this Court has subsequently explained, Ginsberg holds that bookstores and movie theaters "may be prohibited from making indecent material available to children." FCC v. Pacifica Foundation, 438 U.S. 726, 749 (1978); id. at 758 (Powell, J., concurring in part and concurring in the judgment). Such entities may withhold indecent material from children, but still sell it to adults. Ibid. 2. Second, when the dissemination of indecency to adults poses a substantial risk that children will be exposed to the material, government may channel the indecent communications so as to minimize the risk of children being exposed. Pacifica best illustrates that principle. There, the Court upheld an FCC decision holding that a radio station could be sanctioned for an afternoon broadcast of a comedy routine containing a stream of sexually explicit words. The Court explained that "broadcast media have established a uniquely pervasive presence in the lives of all Americans," 438 U.S. at 748; that "[p]atently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home," ibid.; that "prior warnings cannot completely protect the listener or viewer from unexpected program content," ibid.; that "broadcasting is uniquely accessible to children," id. at 749; that the FCC had not "intended to place an absolute prohibition on the broadcast of [indecent] language, but rather sought to channel it to times of day when children most likely would not be exposed to it," id. at 732-733; and that "[a]dults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear these words," id. at 750 & n.28. Similarly, in Denver Area Educational Telecommunications Consortium v. FCC, 116 S. Ct. 2374 (1996), the Court upheld a provision permitting cable system operators to prohibit patently offensive programming over leased access channels. A plurality of the Court did so on the authority of Pacifica, reasoning that cable television poses the same serious and pervasive risk of exposing children to indecent material as broadcast stations. Id. at 23862388. 3. Third, government may adopt reasonable zoning schemes to address the secondary effects of sexually explicit communications. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) and Younq v. American Mini Theatres, Inc., 427 U.S. 50 (1976), establish that point. In City of Renton, the Court upheld a zoning ordinance that prohibited theaters that show sexually explicit adult movies from locating within 1000 feet of any residential zone, single or multiple family dwelling, church, park, or school. 475 U.S. at 44-45. In Young, the Court upheld a zoning ordinance that prohibited movie theaters that show sexually explicit movies from locating within 1000 feet of any similar establishment or within 500 feet of a residential area. 427 U.S. at 52. A majority of the Court agreed on a rationale for those decisions in city of Renton. The Court explained that zoning restrictions on businesses that purvey sexually explicit material are constitutional when they are aimed at the secondary effects of such businesses (such as crime, loss of retail trade, reductions in property values, and reduced quality of urban life), and when they allow for reasonable alternative avenues of communication. 475 U.S. at 47-50. The latter inquiry, moreover, focuses on whether the regulation leaves open alternative locations as a legal matter, not whether sites are currently on the market or are commercially viable. Id. at 53-54. 4. Fourth, government generally may not adopt an outright ban on the dissemination of indecent material to adults. Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989), illustrates that principle. In that case, the Court held unconstitutional a legal prohibition against any dissemination of indecent telephone messages for commercial purposes (dial-a- porn). Although the Court acknowledged that the government had a "compelling interest" in protecting children from dial-a-porn, id. at 126, it rejected the government's argument that a flat ban on such messages was appropriate to vindicate that interest. The Court explained that "the government may not 'reduce the adult population ... to ... only what is fit for children.'" Id. at 127-128. The Court also emphasized that the FCC had "determined that its credit card, access code, and scrambling rules were a satisfactory solution to the problem of keeping indecent dial-a- porn messages out of the reach of minors," ibid., and that there was no evidence to suggest that reliance on such measures would not protect all but "the most enterprising and disobedient young people," id. at 130. Because there was an alternative to a flat ban that would have effectively vindicated the government's interest in protecting children, Sable does not resolve whether an outright prohibition is permissible when there is no reasonably effective alternative. 5. Finally, when government restrictions substantially burden or deter adult access to indecent communications, and a significantly less burdensome alternative will satisfy the government's interests equally well, the government must choose the less burdensome alternative. Denver Area illuminates that principle. There, the Court held unconstitutional a provision that required cable operators to segregate and block patently offensive sex-related material appearing on leased channels, to unblock the channel within 30 days of a subscriber's written request, and to reblock within 30 days of such a request. 116 S. Ct. at 2390-2391. In invalidating that provision, the Court emphasized its "obvious restrictive effects": the significant delays required subscribers to engage in considerable advance planning; the written notice requirement could deter subscribers who feared release of their identities; and the additional costs and burdens could encourage cable operators to ban programs they might otherwise be inclined to show. Id. at 2391. The Court also stressed that Congress had recently adopted an alternative approach for unleased cable channels that was "significantly less restrictive," and the record did not explain how Congress could conclude that its more recent approach would be effective for unleased channels but ineffective for leased channels. Id. at 2392. 6. Applying the principles discussed above, the CDA's transmission and specific child provisions are constitutional under the Ginsberg principle. The display provision is constitutional under both the Pacifica and Renton principles. None of the CDA's restrictions operates as a flat ban, and there is no equally effective way to serve the government's vital interests. The CDA's restrictions therefore do not violate the principles of Sable or Denver Area.(5) B. The Transmission And Specific Child Provisions Are Facially Constitutional 1. The transmission provision forbids any person from using a "telecommunications device" to "knowingly * * * make[], create [], or solicit[], and * * * initiate[] the transmission of" any "communication which is * * * indecent, knowing that the recipient of the communication is under 18 years of age." 47 U.S.C. 223 (a) (1) (B) (emphasis added). By its terms, that prohibition applies only in situations in which a person transmits indecent material to another person, knowing that person is under 18. For example, if an adult learned that one of the participants in a chat room was under 18, and then sent a private indecent communication to that individual by e-mail, the transmission provision would be violated. As that example illustrates, to comply with the transmission provision, persons need not refrain from communicating indecent material to adults; they need only refrain from disseminating such materials to persons they know to be under 18. The transmission provision is therefore precisely tailored to meet the government's interest in shielding children from indecent material. At the same time, the provision does not prohibit communications between adults. The transmission provision is essentially no different from the prohibition on the sale of indecent material to minors upheld in Ginsberg. Like that prohibition, the transmission provision directly prevents the dissemination of indecent material to children without restricting adult access to that material. The district court therefore erred in enjoining its enforcement. 2. The same is true of the specific child provision, which prohibits persons from "knowingly * * * us[ing] an interactive computer service to send" patently offensive sexually explicit material "to a specific person or persons under 18 years of age." 47 U.S.C. 223(d)(1)(A) Like the transmission provision, the specific child provision applies only to situations in which a person sends indecent material to someone he knows to be under 16. Because the provision is aimed at messages knowingly directed to minors, it does not prohibit adult-to-adult communications, and the district court erred in enjoining its enforcement.(6) 3. In their responses to our jurisdictional statement, appellees did not contend that the transmission and specific child provisions are facially unconstitutional if construed as we have suggested. Appellees instead contended that those provisions should be construed far more expansively to reach any communication "that might be seen by any minor." ACLU Mot. to Aff. 26. That interpretation, however, reads the "knowledge" requirement out of the transmission provision and the "knowledge" and "specific" requirements out of the specific child provision. Because appellees, interpretation cannot be squared with the text of the provisions, it must be rejected. Nor do those provisions penalize the sending of an indecent message to a place in cyberspace where minors would have the ability to obtain it (ACLU Mot. to Aff. 26-27 ). That conduct is addressed by the display provision, which prohibits the use of a computer "to display in a manner available" to children sexually explicit material. 47 U.S.C. 223(d)(1)(B). The transmission and specific child provisions have a narrower scope. Their terms require that the person initiating the indecent communication must know that a specific recipient of his message is under 18. Appellees contend (ACLU Mot. to Aff. 26) that the knowledge requirement in the specific child provision requires only knowledge that a computer is being used, not knowledge that the specific child receiving the message is under 18 years of age. Under basic principles of statutory construction, however, the knowledge requirement applies to both elements of the offense. The specific child provision applies to: (d) Whoever -- (1) in interstate or foreign communications knowingly -- (A) uses an interactive computer service to send to specific person or persons under 18 years of age, any * * * communication, that, in context, depicts or describes in terms patently offensive * * * sexual or excretory activities or organs. Because the use-of-computer requirement and the under-18 requirement appear in the same clause, and because the knowledge requirement introduces that clause, it is perfectly natural to read the knowledge requirement as applying to both elements. Moreover, any ambiguity must be resolved by resort to the "presumption" that "a scienter requirement should apply to each of the statutory elements which criminalize otherwise innocent conduct." United States v. X-Citement Video, Inc., 115 S. Ct. 464, 467-469, 472 (1994). The transmission and specific child provisions therefore should be construed in the manner we have suggested. As so construed, they raise no serious constitutional question. C. The Display Provision Is Facially Constitutional The display provision prohibits the use of an interactive computer service to "display" indecent material "in a manner available" to those under 18. 47 U.S.C. 223(d)(1)(B). Because information posted in public portions of the Internet, such as the World Wide Web, newsgroups, or chat rooms, may be automatically "available" to children as well as adults, the display provision has the potential to affect adult-to-adult communication. A person has a "defense to a prosecution," however, if he restricts access to indecent materials "by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number," 47 U.S.C. 223(e)(5)(B) or otherwise takes, "in good faith, reasonable, effective, and appropriate actions * * * to restrict or prevent access to minors," 47 U.S.C. 223(e)(5)(A). When read together with the statutory defenses, the display provision therefore permits persons to post indecent material on the Internet so long as they condition access on the use of credit cards or other adult identification devices, or otherwise employ "reasonable, effective, and appropriate" measures to ensure that their materials are not available to minors. In that way, Congress sought to keep sexually explicit materials on the Internet away from children, while providing significant opportunities for adults who are so inclined to receive such materials. 1. a. The approach Congress enacted is constitutional under Pacifica. Like broadcast stations, the Internet is establishing an increasingly "pervasive presence" in the lives of Americans. 438 U.S. at 748. As many as 40 million people in the world use the Internet today, and that figure is expected to grow to 200 million by 1999. J.S. App. 13a. And while precise figures are not available, the district court found that approximately 60% of the host computers linked to the Internet are located in the United States. Ibid. Like indecency presented on broadcast stations, indecent material presented over the Internet "confronts the citizen * * * in the privacy of the home." 438 U.S. at 748. Like broadcast stations, the Internet "is uniquely accessible to children." Id. at 749. Indeed, as Congress recognized, children have become "the computer experts in our Nation's families." 141 Cong. Rec. S8332 (daily ed. June 14, 1995) (remarks of Sen. Coats). As was true in Pacifica, Congress has not attempted to forbid all indecent communications. Just as the FCC sought to channel indecent broadcasts "to times of the day when children most likely would not be exposed to it," 438 U.S. at 732-733, so Congress has sought in the CDA to channel indecent communications to places on the Internet where children are unlikely to obtain it. And, as was the case in Pacifica, adults who have a desire for indecent material may obtain access to such material in other ways. Id. at 750 & n.28. In addition to attending live theater and nightclubs, adults interested in indecent material can purchase tapes, compact discs, books, magazines, videotapes, and CD Roms. Moreover, in important ways, there is a stronger justification for the restriction at issue here than there was for the one approved in Pacifica. Because millions of people disseminate information on the Internet without the intervention of editors, network censors, or market disincentives, the indecency problem on the Internet is much more pronounced than it is on broadcast stations. The record in this case demonstrates the seriousness of the problem. it shows that sexually explicit material, "from the modestly titillating to the hardest-core, 11 J.S. App. 47a, is widely available on the Internet, and that computer-literate children can easily find and retrieve it. The government's expert, Howard A. Schmidt, the director of the Air Force's computer crimes investigations office, testified at length concerning the ease with which sexually explicit materials can be retrieved through the Internet and other interactive computer services. See Schmidt Decl. paragraphs 7-10, 13-32, 36-37, 38- 39. Search terms such as "xxx," id. paragraphs 7-10, "xxx sex," paragraphs 19-23, "adult porn," id. paragraph 37, and "porn pictures," id. paragraph 38, retrieved long lists of sites containing sexually explicit pictures. Each retrieved site contained links to other equally explicit sites, and access to those sites could be obtained simply by clicking with a computer mouse on the highlighted portion identifying the linked site. See, e.g., Schmidt Decl. paragraphs 10, 21(a), 35, 40. Sexually explicit material can also be accidentally retrieved by search terms that have no necessary sexual connotation, such as "Jasmine," "Sleeping Beauty," and "Little Women." Id. paragraphs 33-35; DX 13A; 3/22/96 Tr. 26:14-29:21, 35:1-37:18. Schmidt's declaration is accompanied in the record by a notebook which contained printouts of each screen that he described in his declaration. That notebook graphically illustrates the dimensions of the problem. The widespread availability of sexually explicit material on the Internet and other interactive computer services has a significance beyond the direct risk posed by such material to the psychological well-being of children.(7) Unless steps are taken to restrict the availability of such material to children, parents and schools may be deterred from permitting children to use interactive computer services. Indeed, many parents may be deterred from bringing the Internet into their homes at all. The "American people have always regarded education and acquisition of knowledge as matters of supreme importance." Meyer v. Nebraska, 262 U.S. 390, 400 (1923). That fundamental value reflects "[b]oth the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child." Plyler v. Doe, 457 U.S. 202, 221 (1982). As a result, parents and their children have a profound interest, protected by the First Amendment, in receiving information and acquiring knowledge. See Kleindienst v. Mandel, 408 U.S. 753, 763 (1972); Red Lion Broadcastincr Co. v. FCC, 395 U.S. 367, 390 (1969); Meyer, 262 U.S. at 399-401. The Internet has unmatched potential to facilitate that interest. Much of the Internet's potential as an educational and informational resource will be lost, however, if substantial numbers of people are unwilling to avail themselves of its benefits because they do not want their children exposed to patently offensive material.(8) The result will be to exclude those children from an equal opportunity to participate in the promise of our new technological age. The government therefore not only has a compelling interest in protecting children from patently offensive material on the Internet, it also has a compelling interest in protecting the First Amendment interests of all Americans in using what has become an unparalleled educational resource. Under Pacifica, the display provision is a constitutional way to further those goals. b. The district court concluded that Pacifica was inapposite, because the danger of inadvertent exposure is not as pronounced on the Internet as it is on broadcast stations. J.S. App. 67a-68a. Pacifica, however, depended not on that one factor alone, but on the overall seriousness and pervasiveness of the problem, and the ineffectiveness of parental supervision as the solution. Far more serious than the risk of inadvertent exposure is that indecent material has the characteristics of an attractive "nuisance," 438 U.S. at 750, which young children are likely to affirmatively seek out. Because there is a much larger quantity of indecent material on the Internet than on broadcast stations, and because it is even more difficult to monitor what a child views on the Internet than it is to monitor what he or she watches and hears on broadcast stations, the overall problem of childrens' unsupervised exposure to sexually explicit material is much more serious on the Internet. The district court's effort to distinguish Pacifica is therefore unpersuasive. Appellees have suggested (ALA Resp. 11 n.8) that the scarcity of broadcast spectrums justified the result in Pacifica. In applying the Pacifica rationale to cable television, however, the plurality in Denver Area squarely rejected that characterization of Pacifica. The Denver Area plurality explained that Pacifica rests on the effect of indecent programming on children, not on program scarcity. 116 S. Ct. at 2388. Pacifica is therefore directly applicable in the present context and fully supports the constitutionality of the CDA's display provision. 2. This Court's zoning decisions also support the constitutionality of the display provision. In effect, the display provision operates as an adult "cyberzoning" restriction, very much like the adult theater zoning ordinances upheld in Renton and Young. Just as the cities of Detroit and Renton could constitutionally require adult theaters to locate outside of residential neighborhoods, see 475 U.S. at 46; 427 U.S. at 52, so Congress could permissibly instruct providers of indecent material on