317 F.

3d 413

PSINET, INCORPORATED; Charlottesville Sexual Health &

Wellness Clinic; Portico Publications, Ltd., Publisher of
Charlottesville Weekly; Silverchair Science Communications,
Incorporated; Commercial Internet Exchange Association;
Virginia ISP Alliance; Rockbridge Global Village; American
Booksellers Foundation for Free Expression; The Periodical
and Book Association of America, Incorporated; Freedom to
Read Foundation; Sexual Health Network; Chris Filkins,
Proprietor of the Safer Sex Institute; Harlan Ellison; The
Comic Book Legal Defense Fund; Susie Bright; A Different
Light Bookstores; Lambda Rising Bookstores; Bibliobytes;
People for the American Way, Plaintiffs-Appellees, and
United States Internet Service Provider Association, Plaintiff,
v.
Warren D. CHAPMAN, Commonwealth Attorney; James L.
Cambloss, III, Commonwealth Attorney, DefendantsAppellants.
No. 01-2352.

United States Court of Appeals, Fourth Circuit.

Argued October 28, 2002.
Filed January 28, 2003.

ARGUED: William Henry Hurd, State Solicitor, Office of the Attorney

General, Richmond, Virginia, for Appellants. Thomas W. Kirby, Wiley,
Rein & Fielding, L.L.P., Washington, D.C., for Appellees. ON BRIEF:
Jerry W. Kilgore, Attorney General of Virginia, Alison P. Landry,
Assistant Attorney General, Office of the Attorney General, Richmond,
Virginia, for Appellants. Garrett M. Smith, Michie, Hamlett, Lowry,
Rasmussen & Tweel, P.C., Charlottesville, Virginia; Michael A.
Bamberger, Sonnenschein, Nath & Rosenthal, New York, New York;
Elliot M. Mincberg, Lawrence S. Ottinger, People for the American Way
Foundation, Washington, D.C.; Robert M. O'Neil, J. Joshua Wheeler, The
Thomas Jefferson Center for the Protection of Free Expression,

Charlottesville, Virginia, for Appellees.

Before NIEMEYER, Circuit Judge, SPENCER, United States District
Judge for the Eastern District of Virginia, sitting by designation, and
DAVIS, United States District Judge for the District of Maryland, sitting
by designation.
Certification Order, entered by Judge NIEMEYER with the concurrences
of Judge SPENCER and Judge DAVIS.
ORDER OF CERTIFICATION TO THE SUPREME COURT OF
VIRGINIA
NIEMEYER, Circuit Judge.

The United States Court of Appeals for the Fourth Circuit, exercising the
privilege afforded it by the Supreme Court of Virginia through its Rule 5:42 to
certify questions of law to the Supreme Court of Virginia when a question of
Virginia law is determinative in a pending action and there is no controlling
Virginia precedent on point, requests the Supreme Court of Virginia to exercise
its discretion to answer two questions of law contained in this Order of
Certification.

I. The Nature of the Controversy

2

A group of individual Internet users, Internet service providers ("ISPs"),

website operators, and related trade associations commenced this action
challenging the constitutionality of the 1999 amendment to Virginia Code
18.2-391, 1999 Va. Acts ch. 936 ("the 1999 Amendment"), which regulates
pornographic materials deemed "harmful to juveniles." The 1999 Amendment
added to the materials regulated by the statute any "electronic file or message
containing an image" or "containing words." As amended, the statute provides:

A. It shall be unlawful for any person to sell, rent or loan to a juvenile, knowing
or having reason to know that such person is a juvenile, or to knowingly display
for commercial purpose in a manner whereby juveniles may examine and
peruse:

1. Any picture, photography, drawing, sculpture, motion picture in any format

or medium, electronic file or message containing an image, or similar visual
representation or image of a person or portion of the human body which depicts

sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is

harmful to juveniles, or
5

2. Any book, pamphlet, magazine, printed matter however reproduced,

electronic file or message containing words or sound recording which contains
any matter enumerated in subdivision (1) of this subsection, or explicit and
detailed verbal descriptions or narrative accounts of sexual excitement, sexual
conduct or sadomasochistic abuse and which, taken as a whole, is harmful to
juveniles.

Va.Code 18.2-391A (emphasis added to identify statutory language inserted

by Amendment).

A. Prior Litigation
7

When first enacted in 1970, Va.Code 18.2-391 applied only to the sale, rental,
or loan of pornographic material deemed "harmful to juveniles." Virginia
modeled this law on a New York statute upheld against a First Amendment
challenge by the Supreme Court in Ginsberg v. New York, 390 U.S. 629, 88
S.Ct. 1274, 20 L.Ed.2d 195 (1968).

In 1985, Virginia amended its statute to prohibit not only the sale, rental, or
loaning of material deemed "harmful to juveniles," but also the knowing display
of such materials. In amended form, the statute provided: "It shall be unlawful
for any person knowingly to sell, rent or loan to a juvenile, or to knowingly
display for commercial purpose in a manner whereby juveniles may examine
and peruse," visual or written material that "depicts sexually explicit nudity,
sexual conduct or sadomasochistic abuse and which is harmful to juveniles."
Va.Code 18.2-391(a) (emphasis added to identify statutory language inserted
in 1985). This 1985 version of the statute became the subject of a First
Amendment challenge that lasted over four years and produced five published
opinions, including opinions by the United States Supreme Court and the
Supreme Court of Virginia.

When we first reviewed the 1985 version of the statute, we held that "the
[1985] amendment discourages the exercise of First Amendment rights in a real
and substantial fashion, in that it is not readily susceptible to a narrowing
interpretation so as to withstand an overbreadth challenge." American
Booksellers Ass'n, Inc. v. Virginia, 802 F.2d 691, 696 (4th Cir. 1986). Although
Virginia stressed that "only a small percentage of the inventory in book stores
could be classified as harmful to juveniles" and therefore that "retail outlets can

readily modify their display methods to comply with the amendment," we

rejected Virginia's characterizations. Id. We ruled that "[t]he display methods
suggested by the Commonwealth appear either insufficient to comply with the
amendment or unduly burdensome on the first amendment rights of adults...."
Id. We reasoned that "[p]lacing `adults only' tags on books and magazines or
displaying the restricted material behind blinder racks or on adults only shelves
freely accessible in the main part of the store would not stop any determined
juvenile from examining and perusing the materials." Id. Further, "[f]orcing a
bookseller to create a separate, monitored adults only section, requiring that the
materials be sealed, or taking the materials off display and keeping them `under
the counter' unreasonably interferes with the booksellers' right to sell the
restricted materials and the adults' ability to buy them." Id.
10

The United States Supreme Court granted a writ of certiorari and, after hearing
oral argument, certified two questions regarding interpretation of the 1985
statute to the Supreme Court of Virginia, pursuant to Rule 5:42 of the Virginia
Supreme Court. 484 U.S. 383, 398, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988).
According to the United States Supreme Court, "an authoritative construction
of the Virginia statute by the Virginia Supreme Court would substantially aid
our review of [the] constitutional holding, and might well determine the case
entirely." Id. at 386, 108 S.Ct. 636. Focusing on the scope of the law's
coverage, the United States Supreme Court asked, in its first certified question:

11

Does the phrase "harmful to juveniles" as used in Virginia Code 18.2-390

and 18.2-391 (1982 and Supp.1987), properly construed, encompass any of the
books introduced as plaintiffs' exhibits below, and what general standard should
be used to determine the statute's reach in light of juveniles' differing ages and
levels of maturity?

12

Id. at 398, 108 S.Ct. 636. Virginia argued that none of the 16 books, which
were submitted by the plaintiffs as books that the plaintiffs contended were
covered by the statute, were in fact covered by the statute. It maintained that
the reach of the statute was much narrower. Id. at 393-94, 108 S.Ct. 636. The
United States Supreme Court noted that "[i]f that is true, methods of
compliance exist that are substantially less burdensome than those discussed by
the lower courts." Id. at 394, 108 S.Ct. 636. The Court concluded that "it is
essential that we have the benefit of the law's authoritative construction from
the Virginia Supreme Court." Id. at 395, 108 S.Ct. 636.

13

In the second question, the United States Supreme Court focused on what
compliance measures potential defendants could take to avoid running afoul of
the law's prohibition. Accordingly, the Supreme Court asked:

14

What meaning is to be given to the provision of Virginia Code 18.2-391(a)

(Supp.1987) making it unlawful "to knowingly display for commercial purpose
in a manner whereby juveniles may examine or peruse" certain materials?
Specifically, is the provision complied with by a plaintiff bookseller who has a
policy of not permitting juveniles to examine and peruse materials covered by
the statute and who prohibits such conduct when observed, but otherwise takes
no action regarding the display of restricted materials? If not, would the statute
be complied with if the store's policy were announced or otherwise manifested
to the public?

15

Id. at 398, 108 S.Ct. 636. Whereas the plaintiffs alleged that compliance with
the law would require drastic measures such as reconfiguring the store or
completely barring minors from the store, Virginia argued that "a bookseller
will not be subject to criminal prosecution if, as a matter of store policy, the
bookseller prevents a juvenile observed reviewing covered works from
continuing to do so, even if the restricted materials are not segregated." Id. at
396, 108 S.Ct. 636. The United States Supreme Court explained the importance
of the second question: "If this is what the statute means, the burden to the
bookseller, and the adult bookbuying public, is significantly less than that
feared and asserted by plaintiffs." Id. at 397, 108 S.Ct. 636.

16

The Supreme Court of Virginia accepted the certified questions and responded
to the first question, applying the three-part test set forth in the statute, Va.Code
18.2-390(6), defining the term "harmful to juveniles." Virginia v. American
Booksellers Ass'n, Inc., 236 Va. 168, 372 S.E.2d 618 (1988). As to the first two
prongs of the test, the court recognized that they presented questions of fact for
determination by a properly instructed jury. Id. at 176, 372 S.E.2d at 623. The
third prong, however, was found to involve a mixed question of law and fact
that the court could properly decide. Id. at 176, 372 S.E.2d at 623. The court
concluded that "if a work is found to have a serious literary, artistic, political or
scientific value for a legitimate minority of normal, older adolescents, then it
cannot be said to lack such value for the entire class of juveniles taken as a
whole." Id. at 177, 372 S.E.2d at 624. The court then concluded that none of
the books submitted by the plaintiffs as exhibits lacked serious literary, artistic,
political, or scientific value for a legitimate minority of older, normal
adolescents, and thus none of the books were "harmful to juveniles" within the
meaning of Va.Code 18.2-390(6). Id. at 177, 372 S.E.2d at 624.

17

The Supreme Court of Virginia also provided a narrow construction in

responding to the certified question focusing on compliance measures. The
court explained that the scienter requirement in the statute was significant: "A
violation must consist of proof beyond a reasonable doubt that the bookseller

knowingly afforded juveniles an opportunity to peruse harmful materials in his

store or, being aware of facts sufficient to put a reasonable person on notice that
such opportunity existed, took no reasonable steps to prevent the perusal of
such materials by juveniles." American Booksellers, 236 Va. at 179, 372 S.E.2d
at 625 (emphasis added). Again, the court stated, "[r]easonable efforts to
prevent perusal of harmful materials by juveniles are all that the statute
requires of a bookseller." Id. at 179, 372 S.E.2d at 625. According to the
Virginia Supreme Court, "[t]he question whether a bookseller's efforts were
reasonable, in any given set of circumstances is, of course, an issue of fact to be
resolved by a properly-instructed jury, but certain general principles may be
discerned." Id. at 179, 372 S.E.2d at 625. The court then provided "a clear
example of a method a bookseller might easily adopt" to avoid violating the
statute. Id. If a bookseller placed all restricted books on a shelf in the sight of
the bookseller and intervened whenever a juvenile attempted to peruse and
examine books on that shelf, then the bookseller would be in compliance with
the statute. Id. at 179-80, 372 S.E.2d at 625. Finally, with the assumption that
"the hypothetical bookseller `who has a policy of not permitting juveniles to
examine and peruse materials covered by the statute' does not merely cerebrate
upon such a policy, but takes reasonable steps to put it into effect," the court
answered the second certified question in the affirmative. Id. at 180, 372 S.E.2d
at 625. According to the Virginia Supreme Court, the amended statute
"imposes a relatively light burden upon the bookseller, in contrast to the state's
interest in protecting juveniles from materials harmful to them." Id.
18

Upon receipt of the Supreme Court of Virginia's answers to the two certified
questions, the United States Supreme Court vacated our initial decision and
remanded for our consideration in light of the Supreme Court of Virginia's
answers. Virginia v. American Booksellers Ass'n, Inc., 488 U.S. 905, 109 S.Ct.
254, 102 L.Ed.2d 243 (1988). In view of the Virginia Supreme Court's
construction of the statute, we reversed our previous conclusion that the 1985
statute was unconstitutionally overbroad under the First Amendment. 882 F.2d
125, 126 (4th Cir.1989). We noted the Supreme Court of Virginia's explanation
that "the 1985 amendment was not aimed at mere browsing but at `the
opportunity [a bookseller] may afford to juveniles to take off the shelves books
which they are unable to buy, and to read them in the store.'" Id. at 127. Most
importantly, we stated that we "agree with the Virginia Supreme Court that the
amendment to the statute places a minimal burden on booksellers and
represents a constitutionally permissive exercise of the state's police powers."
Id. at 127-28.

B. Present Litigation
19

After the 1999 Amendment was enacted, the plaintiffs commenced this action

19

After the 1999 Amendment was enacted, the plaintiffs commenced this action
in December 1999 facially challenging the 1999 Amendment as
unconstitutional under the First Amendment and the dormant Commerce
Clause. They alleged that the 1999 Amendment extended the reach of the
statute from physical space into cyberspace and, because of the nature of the
Internet, the 1999 Amendment was not sufficiently precise to withstand strict
scrutiny under the First Amendment. They also alleged a dormant Commerce
Clause violation.

20

By order dated October 11, 2001, the district court granted summary judgment
to the plaintiffs, permanently enjoining the enforcement of Virginia Code
18.2-391 "to the extent it prohibits the sale, rental, loan or display of an
`electronic file or message containing an image' or an `electronic file or
message containing words.'" In doing so, the court ruled that the extension of
the law to the Internet created a violation of the First Amendment where there
previously was none. According to the district court:

21

The pre-amendment version of section 18.2-391 applied only to traditional

media in physical spaces, and thus made it possible to restrict minors' access to
indecent material without substantially burdening adult access. For example, in
a brick and mortar bookstore, a magazine considered harmful to minors can be
wrapped in protective covering and placed behind the counter where only
adults can purchase it. Presently, the same cannot be said for material on the
Internet. That is, efforts to comply with the 1999 Act will result in the
exclusion of too many adults from accessing material to be constitutionally
sound.

22

PSINET, Inc. v. Chapman, 167 F.Supp.2d 878, 887 (W.D.Va.2001). The

Commonwealth of Virginia defended the statute before the district court by
arguing that cyberspace and physical space were not fundamentally different
with regard to distinguishing between adults and juveniles. According to
Virginia, "minimally burdensome measures are available to commercial
Internet pornographers who want reasonable assurances that juveniles will not
peruse materials on their site." Id. at 887. Just as a physical store can create an
adults-only section for videos or an adults-only shelf for books, the
Commonwealth argued, so an Internet site can create adults-only pages that
may only be accessed after the user has input a credit card number or an adultcheck PIN. The district court, however, rejected this argument because of the
district court's determination that "the 1999 Act does not include an affirmative
defense to prosecution for commercial Web sites if they in fact incorporate such
compliance measures." Id. at 888. The court explained that because the Act
lacked an affirmative defense, "even the most responsible adult Web sites may

have legitimate concerns that they will be subjected to criminal liability in the
state of Virginia." Id.
23

Additionally, the district court concluded that even if the 1999 Amendment
contained an affirmative defense for those implementing technological access
controls, the statute would still violate the First Amendment because "despite
the parties' focus on commercial adult Web sites, the Act applies broadly to the
Internet and the many different communication formats it encompasses,
including newsgroups, bulletin boards and chat rooms." 167 F.Supp.2d at 889.

24

The district court also held that the 1999 Amendment violated the dormant
Commerce Clause.

25

We are now faced with a situation not unlike that presented to this court in the
litigation challenging the constitutionality of the 1985 version of the statute.
Mindful of the course that the prior litigation followed, we conclude that it is
appropriate to certify two questions to the Supreme Court of Virginia relating to
the scope of the 1999 Amendment.

II. The Questions of Law to be Answered

26

A. Would the use of any of the technological access controls identified by the
Attorney General of Virginia preclude conviction under Virginia Code 18.2391 as amended in 1999?

27

B. Does the prohibition against knowingly displaying pornographic materials

that are "harmful to juveniles" apply to displays made only in connection with
the sale, rental, or loan of such materials? If not, what must the government
establish to prove that a defendant has knowingly displayed such materials "for
commercial purpose"?

III. Statement of Facts

28

Because this is a facial challenge to Virginia Code 18.2-391 and because the
1999 Amendment has been enjoined since shortly after it became effective,
there are no facts relevant to how the amended law has been enforced. The
plaintiffs, however, have advanced their personal situations as to how they
would be affected by enforcement of the statute.

29

The plaintiffs are businesses that provide Internet access (e.g., PSI-Net, the
Commercial Internet Exchange Association); businesses that provide content

transmitted over the Internet (e.g., Charlottesville Sexual Health & Wellness
Clinic, A Different Light Bookstores); individuals who provide content
transmitted over the Internet (e.g., Susie Bright); and membership organizations
representing individuals whose access to pornographic materials would be
limited by the law (e.g., People for the American Way).
30

The underlying facts relate primarily to the nature of the Internet, and most of
the district court's factual findings, or more precisely observations, relating to
this are contained in its August 2000 opinion granting a preliminary injunction.
See PSINet, Inc. v. Chapman, 108 F.Supp.2d 611, 614-16 (W.D.Va.2000).
Although the district court modified the preliminary injunction when it granted
the permanent injunction and entered summary judgment in favor of the
plaintiffs, its opinion supporting its judgment explicitly incorporated the
observations about the nature of the Internet from its earlier opinion. See
PSINET, Inc., 167 F.Supp.2d at 883.

31

The district court's description of the nature of the Internet was heavily
derivative of findings made by other courts that had previously described the
nature of the Internet. See PSINet, Inc., 108 F.Supp.2d at 614-16. Although
these findings are actually observations and some may need to be modified or
updated to reflect changes in technology while others may not be relevant,
particularly if the statute is given a narrower construction than that adopted by
the district court, we quote the district court's findings at length because they
might provide a useful overview of the context within which the present
challenge has proceeded:

32

The Internet is a decentralized, global medium of communications that links

people, institutions, corporations, and governments around the world. Host
computers those storing information and relaying communications on the
Internet number in the tens of millions, and personal computers accessing
the Internet have been estimated to number in the hundreds of millions. The
information available on the Internet is of very diverse subject matter. At any
given moment, the Internet also serves as a communication medium for literally
tens of thousands of conversations, debates, and social dialogues. Content
ranges from academic writings, to art and literature, to medical information, to
music, to news and other information, some of which contains sexually explicit
material.

33

The Internet is distinguishable from traditional media because the Internet

simply links together enormous numbers of individual computers and computer
networks; therefore, no single entity or group controls the content that is
available on the Internet, or the access to that content. There is no centralized

point from which individual Web sites or services can be blocked. Rather, the
almost infinite range of information available on the Internet is supplied by
millions of users on millions of separate computers around the world.
******
34
35

There are a variety of ways for communicating and exchanging information

with other users on the Internet. The primary methods include: (1) email, which
enables an individual to send an electronic message generally akin to a note or
letter to an individual address or to a group of addresses; (2) instant messaging,
which allows an online user to address and transmit an electronic message to
one or more people with little delay between the sending of an instant message
and its receipt by the addressees; (3) online discussion groups, such as "chat
rooms," thousands of which have been organized by individuals, institutions,
and organizations; and (4) the World Wide Web, which is currently 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
can then be accessed by any other user anywhere in the world. The Web
comprises millions of separate interconnected "Web sites" that may in turn have
hundreds of separate "pages" displaying content provided by the particular
person or organization that created the site.

******
36
37

For most communications over the Internet, the speaker has little or no
effective control over whether minors or adults are able to gain access to his
communications. In addition, speakers who publish on the Web generally make
their materials publicly available to users around the world, regardless of age,
and lack any practical or reliable means for preventing minors from gaining
access to the information on their sites or for verifying the true age of users of
their Web sites. The Internet also is wholly insensitive to geographic
distinctions, and Internet protocols were designed to ignore rather than to
document geographic location. While computers on the Internet do have
"addresses," they are addresses on the network rather than geographic addresses
in real space. Most Internet addresses contain no geographic information at all.
An Internet user who posts a Web page in one state cannot readily prevent
residents of other states from viewing that page, or even discern in which state
visitors to the site reside. Participants in online chat rooms and discussion
groups have no way to tell when participants from another state join the
conversation. There is no practical way for an Internet speaker to prevent a
message from reaching residents of his own or any particular state.

38

The overwhelming majority of information on the Web is provided to users

38

The overwhelming majority of information on the Web is provided to users

free. However, much online speech is displayed for commercial purposes
where enterprises are seeking to use the Web to advance their business and
organizational goals. Companies do so in a variety of ways. Some businesses,
like ISPs, charge their customers for providing an electronic "pipeline" through
which the customers may view information on the Internet, or for storing data
that customers wish to place on the Web. In addition, to attract and retain
subscribers, ISPs may also provide other Internet services such as email or chat
rooms, access to which is included in subscribers' fees. Other Web companies
generate revenue through advertising. These businesses offer content to attract
readers, and sell access to those Web users to advertisers interested in reaching
that audience.

39

Many online content providers including booksellers, music stores, and art
providers allow potential customers to browse their wares free on the
Internet, similar to browsing an actual book store or art gallery. Web shoppers
may view samples, summaries, or even entire works at no charge, before
deciding whether to make a purchase. Even apart from the material on the Web,
a great deal of communication that takes place via the Internet serves a
commercial purpose. For example, many entities offer free email or chat rooms
to draw users to their sites, so that the sites will be more attractive to potential
customers, advertisers or paying contributors. Businesses use email to
communicate more efficiently with customers, suppliers, and within their own
organizations.

40

Id. at 614-16 (footnote and internal citations omitted).

IV. The Parties and Their Counsel

A. The plaintiffs-appellees are:
41

PSINet, Inc.; Charlottesville Sexual Health & Wellness Clinic; Portico

Publications, Ltd., Publisher of C-Ville Weekly; Silverchair Science &
Communications, Inc.; Virginia ISP Alliance; Rockbridge Global Village;
American Booksellers Foundation for Free Expression; The Periodical and
Book Association of America, Inc.; Freedom to Read Foundation; Sexual
Health Network; Chris Filkins, Proprietor of the Safer Sex Institute; Harlan
Ellison; The Comic Book Legal Defense Fund; Susie Bright; A Different Light
Bookstores; Lambda Rising Bookstores; Bibliobytes; and People for the
American Way.
Counsel for the plaintiffs-appellees are:

42

Norman Christopher Hardee Thomas W. Kirby Wiley, Rein, & Fielding LLP
1776 K Street, N.W. Washington, D.C. 20006 202-719-7000

43

Michael A. Bamberger Sonnenschein, Nath & Rosenthal 1221 Avenue of the

Americas, 24th Floor New York, New York 10020 212-768-6700

44

Elliot M. Mincberg Lawrence S. Ottinger People for the American Way

Foundation 2000 M Street, N.W., Suite 400 Washington, D.C. 20036 202-4674999

45

Robert M. O'Neil J. Joshua Wheeler The Thomas Jefferson Center for the
Protection of Free Expression 400 Peter Jefferson Place Charlottesville,
Virginia 22911 434-295-4784

46

Garrett M. Smith Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C. 500 Court
Square, Suite 300 Charlottesville, Virginia 22902 434-982-8919
B. The defendants-appellants are:

47

Warren D. Chapman, Commonwealth Attorney, and James L. Cambloss, III,

Commonwealth Attorney.
Counsel for the defendants-appellants are:

48

Jerry W. Kilgore, Attorney General of Virginia

William H. Hurd, State Solicitor

49

Alison P. Landry, Assistant Attorney General Office of the Attorney General

900 East Main Street Richmond, Virginia 23219 804-786-2436

50

V. Certified Questions as Determinative of This Proceeding

51

Just as the scope of the 1985 version of Virginia Code 18.2-391 was
determinative in 1989 of whether the statute was constitutional, the scope of the
1999 Amendment is determinative of whether the statute is constitutional at
this time. Ascertaining the scope of the law's coverage and what compliance
measures would preclude conviction is necessary for resolution not only of the
First Amendment claim, but also for resolution of the dormant Commerce

Clause claim, should it be necessary for us to reach the latter issue.

52

According to the Supreme Court of Virginia, "[a] violation [of Virginia Code
18.2-391 (1985 version)] must consist of proof beyond a reasonable doubt that
the bookseller knowingly afforded juveniles an opportunity to peruse harmful
materials in his store or, being aware of facts sufficient to put a reasonable
person on notice that such opportunity existed, took no reasonable steps to
prevent the perusal of such materials by juveniles." American Booksellers, 236
Va. at 179, 372 S.E.2d at 625 (emphasis added). The question that is now
posed by the 1999 Amendment to Virginia Code 18.2-391, which extends
regulation to the Internet, is whether the implementation of a technological
screen to sort juveniles from adults constitutes a "reasonable step" that would
preclude prosecution. Earlier, the Supreme Court of Virginia explained that "
[t]he question whether a bookseller's efforts were reasonable, in any given set
of circumstances is... an issue of fact," but "certain general principles may be
discerned." Id. at 179, 372 S.E.2d at 625 (emphasis added). The court
instructed that a bookseller who placed restricted books on a shelf within sight
of the bookseller had taken a reasonable step to comply with the law, and this
form of compliance provided "a clear example of a method a bookseller might
easily adopt" to avoid violating the statute. Id. The same sort of interpretative
guidance provided by the Supreme Court of Virginia with regard to compliance
measures in physical space is now needed with regard to compliance measures
in cyberspace.

53

Thus, we have presented the first question of whether any technological access
controls identified by Virginia would preclude conviction under the 1999
version of Virginia Code 18.2-391.

54

Similarly, the second question certified addresses the scope of the statute's
coverage in cyberspace. Prior to the 1999 Amendment, the scope of the law's
application was fairly clear it applied to booksellers, video rental stores, and
newsstands in Virginia. With the 1999 Amendment, however, we are uncertain
about the scope of the Act as applied to the Internet. In the world of physical
bookstores and other merchants located within Virginia's borders, there was no
need to construe the statutory phrase "for commercial purpose" in the portion of
the statute stating that "[i]t shall be unlawful ... to knowingly display for
commercial purpose in a manner whereby juveniles may examine and peruse"
any material deemed "harmful to juveniles." Va.Code 18.2-391A (emphasis
added). By and large, the physical locations in which pornographic materials
were sold, rented, and loaned were the same locations where such materials
were knowingly displayed for commercial purpose. The entire focus of the
prior litigation was on the law's application to booksellers and other merchants.

55

Virginia contends that the 1999 Amendment makes the law applicable
primarily to Web-based "commercial pornographers." Although Virginia does
not describe what is meant by "commercial pornographer," it apparently intends
to denote by this term consistent with the reach of the statute prior to the
1999 Amendment a person or business who sells, rents, or loans
pornography and otherwise knowingly displays such pornography in connection
with the sale, rental, or loan of pornography. Under this interpretation, the 1999
Amendment merely extends the reach of the law to the electronic equivalent of
bookstores, newsstands, and video rental stores. In addition to the cyberspace
equivalent of bookstores and newsstands, however, the Internet includes news
groups, e-mail, and informational websites, all of which may arguably be
operated "for commercial purpose" using a different business model than a
traditional bookstore.

56

The plaintiffs, challenging the 1999 Amendment as too broad, point out that

57

[m]ost Internet communications and information remain free of charge, even

when displayed or disseminated for commercial purposes. In one common
model, many web businesses provide content (e.g. news, sports, weather, traffic
information, music, hobby information, and so on) that they hope will attract
visitors, and they then sell advertising.... Booksellers and music stores often
allow anonymous online visitors to browse excerpts or summaries without
charge, and they also may sponsor bulletin boards, chat rooms, provide alerts
to matters of special interest to patrons, and so on.

58

The plaintiffs also emphasize that "Internet speech that has a commercial
purpose is by no means limited to website displays. Rather, it includes all other
Internet modalities."

59

In response to these assertions, Virginia argues that "[t]here is no evidence that

those who send or post messages by these non-web modalities typically do so
with a commercial purpose." It states further that even "assuming that some
speakers use non-web-based Internet modalities to display harmful messages
for a commercial purpose and assuming that there is no way to separate the
adult and juvenile audiences (an allegation in dispute) it is by no means
evident that those speakers are entitled to engage in harmful speech before such
a mixed audience."

60

One consequence of the plaintiffs' interpretation is that it results in a reading of

the statute that reaches significantly more broadly than Virginia interprets the
statute to reach. Yet, the United States Supreme Court has held "that a state

statute should not be deemed facially invalid unless it is not readily subject to a
narrowing construction by the state courts, and its deterrent effect on legitimate
expression is both real and substantial." Erznoznik v. City of Jacksonville, 422
U.S. 205, 216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (internal citations
omitted). Cf. Ashcroft v. ACLU, 535 U.S. 564, 122 S.Ct. 1700, 1721, 152
L.Ed.2d 771 (2002) (Kennedy, J., concurring) (noting that the Federal Child
Online Protection Act "seems to apply even to speech provided for free, so long
as the speaker merely hopes to profit as an indirect result," and indicating that
the Court of Appeals never addressed whether the statute's "commercial
purposes" language significantly narrowed the reach of the statute's
prohibitions); id. ("It is crucial... to know how limiting is the Act's limitation to
`communication for commercial purposes'").
61

Thus, the validity of the Act as extended to cyberspace may depend on how
narrowly it is construed by the Supreme Court of Virginia. Accordingly, we
have posed the second question, which relates to whether "for commercial
purpose" is intended to mean displays made in connection with the "sale, rental,
or loan of such materials."

62

In certifying both questions, we are mindful of the Supreme Court's admonition

that "[w]arnings against premature adjudication of constitutional questions bear
heightened attention when a federal court is asked to invalidate a State's law,
for the federal tribunal risks friction-generating error when it endeavors to
construe a novel state Act not yet reviewed by the State's highest court."
Arizonans for Official English v. Arizona, 520 U.S. 43, 79, 117 S.Ct. 1055, 137
L.Ed.2d 170 (1997). Such concerns exist to an even greater extent in the
unusual circumstances of this case, where we are asked to invalidate a state law
that previously had been held constitutional after the Supreme Court of Virginia
construed an earlier version of the same law, with the only difference between
the versions provided by the extension of the law's reach to the Internet.

63

For these reasons, we conclude that "an authoritative construction of the

Virginia statute by the Virginia Supreme Court would substantially aid our
review of [the] constitutional holding, and might well determine the case
entirely." American Booksellers, 484 U.S. at 386, 108 S.Ct. 636.

VI. Relevant Decisions

64

Based on the narrowing construction of Virginia Code 18.2-391 given by the

Supreme Court of Virginia to the pre-1999 version of the statute in American
Booksellers, 236 Va. at 168, 372 S.E.2d at 618, we held the statute in its pre1999 form constitutional against a First Amendment challenge in American

Booksellers, 882 F.2d at 125. The 1999 Amendment added "electronic files"
and "messages" to the materials regulated, and there is no decision of the
Supreme Court of Virginia or the Court of Appeals of Virginia that has
construed the statute, as amended in 1999.
VII. Order
65

Pursuant to the privilege made available by Rule 5:42 of the Supreme Court of
Virginia relating to the certification of questions of law, it is hereby ordered:

66

A. That the questions stated in Part II above be, and the same hereby are,
certified to the Supreme Court of Virginia for answers;

67

B. That the Clerk of this court forward to the Supreme Court of Virginia, under
the official seal of this court, a copy of this Certification Order, together with
the original or copies of the record before this court to the extent requested by
the Supreme Court of Virginia; and

68

C. That any request for all or part of the record be fulfilled by the Clerk of this
court simply upon notification from the Clerk of the Supreme Court of
Virginia.

69

This order is entered by Judge Niemeyer, with the concurrences of Judge

Spencer and Judge Davis.