Professional Documents
Culture Documents
United States Court of Appeals, Fourth Circuit
United States Court of Appeals, Fourth Circuit
3d 413
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.
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:
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
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:
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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:
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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
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:
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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.
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
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:
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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.
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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.
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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.
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Norman Christopher Hardee Thomas W. Kirby Wiley, Rein, & Fielding LLP
1776 K Street, N.W. Washington, D.C. 20006 202-719-7000
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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
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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:
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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
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
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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."
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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'").
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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."
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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
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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:
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A. That the questions stated in Part II above be, and the same hereby are,
certified to the Supreme Court of Virginia for answers;
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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
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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.
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