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Second, all of the plaintiffs are blocked by at least one of the major internet content filters, in whole or in part. That is a sign that the business entities that create internet content filters believe that the plaintiffs are in the kind of speech that parents want to keep from their children.
Third, we have asked the government repeatedly, and your honor is well aware of this discussion, to more carefully define what it is that is covered by COPA. And the whole issue of defining what is harmful to a 16-year-old but not harmful to a 17-year-old and the issue of trying to distinguish between the Playboy picture, which the government says is not harmful to minors, and the Penthouse picture that the government says is harmful to minors, in all of the answers to the contention interrogatories, it is literally impossible for the plaintiffs to know, based on those descriptions, what is harmful to minors and what is not harmful to minors.
It is worth noting that many of the plaintiffs have participated in state cases challenging harmful to minors laws, and a number of other entities participated in state cases challenging harmful-to-minors laws. Somewhere between half a dozen and a dozen of those have been declared unconstitutional. But in no instance has there been serious doubt about the standing of the plaintiffs in those cases and the risks that they face under harmful-to-minors laws.
And finally, there is United States vs. Eckert, 11th Circuit decision from October 4, 2006. Eckert is an obscenity case. The department of justice prosecuted Mr. Eckert on the grounds of obscenity, and the evidence will show, and we will bring this to your honor, that the speech engaged in by Mr. Eckert was much more mild than any of the speech that the plaintiffs engage in. If the speech in Eckert is obscene, then surely it is reasonable for the plaintiffs to believe that their speech might be prosecuted by the Department of Justice as harmful to minors.
The second overarching factual issue is the less restrictive alternative narrow tailoring. There is no question that COPA is overinclusive, that it does precisely what it does by Butler vs. Michigan: bars adults from having access to speech that they are constitutionally protected to have in the name of protecting children. As long ago as Butler, the Supreme Court said that is impermissible.
It is also grossly underinclusive, as I noted. There is no harmful-to-minors law in any other media of communication. COPA does not reach overseas sites.
Your honor will hear from Professor Zook, who will tell you that over half of all of sexually explicit material sites these days are overseas, based overseas, and that number is increasing rapidly. So as the plaintiffs are aware, the United States government has never sought to either extradite or prosecute a foreign national for engaging in speech about sex that is illegal in the United States.
They will make an argument about overseas prosecutions, but in light of the fact that they have never done it, that argument is going to be weak at best.
Not only does COPA not reach the 50 percent of all speech that is overseas, it does not reach non-commercial speech on the internet. It does not reach many of the forms of communications on the internet, including some that are becoming the most popular. It does not reach email, which is, of course, the most popular of all possible internet communications. It does not reach instant messaging, which is an extremely popular form of communication for young people. It does not reach peer-to-peer communications. Your honor will hear from Professor Felten, who will explain the nature of these forms of communication and why they were not covered by COPA.
There are alternatives to the COPA effort to protect children, and those alternatives will not only be less restrictive and not only equally effective, they will be more effective. And the evidence from witnesses from both parties will show that.
No party is going to claim that internet-content filtering is perfect. It isn't. No party, I think, is going to claim that COPA is perfect. It isn't. The question really is the relative comparison here.
Filtering solves the underinclusiveness problem. It reaches overseas sites. It reaches noncommercial sites. It can be used to block access to email and IM and peer-to-peer and other forms of internet communications. In other words, most of the underinclusiveness as represented by COPA is solved through filters. It solves the overinclusiveness problem. Adults don't have to use filters. They can set up their computer so that only their children are covered by filters and they are not. It also adds additional levels of protection for children, including monitoring the sites that the children go to and tailoring the degree of filtering to the age and maturity of the child and to the values of the family.
The evidence will show that filters are largely successful. The Department of Justice has stipulated that it uses internet content filters on the Department of Justice's websites, on the FBI's websites, on the Bureau of Prison websites and so on. They have stipulated those filters are effective in blocking access to sexually explicit material for the employees of the Department of Justice.
Your honor will hear from three school librarians. The three school librarians have internet content filtering on their computers. They are an effective means of preventing children from having access to sexually explicit material.
Your honor will hear from Professor Cranor, plaintiffs' principal expert on filtering, who will testify that there are a number of studies that have been done on the effectiveness of filters. They are generally effective, not perfect, but generally effective in protecting the children from having access to images that the parents don't want them to have access to.
Finally, your honor, you will hear from Mr. Mewett, the defendants' witness. Plaintiffs do not concede Mr. Mewett's expertise, or even the quality of the work he has done, but it is worth noting that his evidence is, in fact, more supportive of plaintiffs' position than it is of defendant's position.
Mr. Mewett testified in his deposition in this connection, I think I need to back up half a step. It's useful to distinguish between the problem of children coming across sexually explicit material sites accidentally and the problem of children who are setting out deliberately to look for sexually explicit material sites, because they present slightly different problems.
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