A coalition of trade associations, electronic publishers and civil liberties groups filed suit on Jan 14, 1996, challenging that a New York law imposing criminal penalties for electronic transmission of "indecent" material "harmful to minors" is an unconstitutional restriction of speech.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


AMERICAN LIBRARY ASSOCIATION; FREEDOM TO READ FOUNDATION, INC.; NEW
YORK LIBRARY ASSOCIATION; WESTCHESTER LIBRARY SYSTEM; AMERICAN
BOOKSELLERS FOUNDATION FOR FREE EXPRESSION; ASSOCIATION OF AMERICAN
PUBLISHERS, INC.; BIBLIOBYTES, INC.; MAGAZINE PUBLISHERS OF AMERICA,
INC.; INTERACTIVE DIGITAL SOFTWARE ASSOCIATION; PUBLIC ACCESS NETWORKS
CORPORATION; ECHO; NEW YORK CITY NET; ART ON THE NET; PEACEFIRE; and
AMERICAN CIVIL LIBERTIES UNION, Plaintiffs,

v.

GEORGE PATAKI, in his official capacity as Governor of the State of
New York; and DENNIS VACCO, in his official capacity as Attorney
General of the State of New York, Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Index No. __________


PRELIMINARY STATEMENT

1. The State of New York has enacted a broad censorship statute that
imposes severe restrictions on the availability, display and
dissemination of constitutionally protected, non-obscene materials on
the Internet by making it a felony to use a computer communication
system to disseminate "indecent" material that is "harmful to minors."
Section 5 of 1996 N.Y. Laws 600 (codified at N.Y. Penal Law Section
235.21(3)) (hereinafter the "Act"). This action seeks to have the Act
declared facially unconstitutional and void, and to have the State
enjoined from enforcing the Act, by reason of the First, Fifth and
Fourteenth Amendments and the Commerce Clause of the United States
Constitution.

2. The Act is similar to the federal Communications Decency Act
("CDA"), Pub. L. No. 104-104, Section 502, 110 Stat. 133-139 (1996)
(codified at 47 U.S.C. Section 223). Both the CDA and the Act attempt
to restrict minors from having access to certain types of "indecency,"
speech that is clearly constitutionally protected among adults. Two
separate three-judge federal courts have found the CDA to be
unconstitutional because it restricts the communication of protected
speech among adults and have entered preliminary injunctions barring
enforcement of the federal statute. See Shea v. Reno, 930 F. Supp. 916
(S.D.N.Y. 1996), appeal docketed, No. 96-595 (S. Ct. 1996); ACLU v.
Reno, 929 F. Supp. 824 (E.D. Pa. 1996), prob. juris. noted, 65
U.S.L.W. 3414 (S. Ct. Dec. 6, 1996) (No. 96-511). The reasoning of the
opinions striking down the CDA render the Act equally
unconstitutional.

3. The Act regulates speech on the Internet. The Internet represents
the most participatory marketplace of mass speech yet developed -- it
is in many ways a far more speech-enhancing medium than radio or
television, print, the mails, or even the village green. Literally
hundreds of millions of individuals can now engage in interactive
communication on a national and global scale via computer networks
that are connected to the Internet. With a few simple tools and at a
very low cost, the Internet enables average citizens to participate in
local or worldwide conversations, publish an online newspaper,
distribute an electronic pamphlet, and communicate with a broader
audience than ever before possible. The Internet also provides
millions of users with access to a vast range of information and
resources. Internet users are far from passive listeners -- rather,
they are empowered with the tools to seek out exactly the information
they need and to respond with their own information if desired.

4. Because of the way the Internet works, the Act's prohibition on
certain communications with minors effectively would ban those same
communications between adults. The Act targets speech that is
constitutionally protected for adults, including, for example,
valuable works of literature and art, safer sex information, examples
of popular culture, and a wide range of robust human discourse about
current issues and personal matters that may include provocative or
sexually oriented language. There are no reasonable technological
means for users of the Internet to ascertain the age of persons who
access their communications, or of restricting or preventing access by
minors to certain content. The Act will thus reduce the adult
population in cyberspace to reading and communicating only material
that is suitable for young children. In addition, because the Act
makes no allowance for the varying levels of maturity of minors of
different ages, the Act prohibits speech that is valuable and
constitutionally protected for older minors, but that may not be
appropriate for younger children.

5. The speech at issue in this case does not include obscenity, child
pornography, speech used to entice or lure minors into inappropriate
activity, harassing speech, or other speech lacking First Amendment
protection.

6. Plaintiffs represent a broad range of individuals and entities who
are speakers, content providers and access providers on the Internet.
Plaintiffs include libraries, booksellers and publishers who provide
content on and access to the Internet; Internet service providers who
provide access to the Internet; and many individual users of and
content providers to World Wide Web sites, chat rooms and discussion
groups on the Internet. The Act directly violates the First Amendment
rights of plaintiffs, their members and tens of millions of other
speakers and users of the Internet.

7. In addition, the Act violates the Commerce Clause because it
regulates commerce occurring wholly outside of the State of New York,
because it imposes an impermissible burden on interstate and foreign
commerce and because it

subjects interstate use of the Internet to inconsistent state
regulations.

JURISDICTION AND VENUE

8. This case arises under the United States Constitution and the laws
of the United States and presents a federal question within this
Court's jurisdiction under Article III of the federal Constitution and
28 U.S.C. Section 1331 and 28 U.S.C. Section 1343(3). This action is
brought pursuant to 42 U.S.C. Section 1983.

9. The Court has the authority to grant declaratory relief pursuant to
the Declaratory Judgment Act, 28 U.S.C. Section 2201 et seq.

10. The Court has the authority to award costs and attorneys' fees
under 42 U.S.C. Section 1988.

11. Venue is proper in the district under 28 U.S.C. Section 1391(b).

THE PARTIES

12. The named plaintiffs are briefly described below. The impact of
the Act on the plaintiffs' communications is described more fully in
paragraphs 88-141.

13. Plaintiff AMERICAN LIBRARY ASSOCIATION ("ALA"), founded in 1876,
is a non-profit, educational organization committed to the
preservation of American libraries as resources that are indispensable
to the intellectual, cultural, and educational welfare of the nation.
The ALA's direct membership includes over 3,000 libraries, more than
55,000 librarians, as well as other entities and individuals.

14. Plaintiff FREEDOM TO READ FOUNDATION, INC. ("FTRF") is a
non-profit membership organization established in 1969 by the ALA to
promote and defend First Amendment rights; to foster libraries as
institutions fulfilling the promise of the First Amendment for every
citizen; to support the rights of libraries to include in their
collections and make available to the public any work they may legally
acquire; and to set legal precedent for the freedom to read on behalf
of all citizens. ALA and FTRF sue on their own behalf, on behalf of
their members who use online computer communication systems, and on
behalf of the patrons of their member libraries.

15. Plaintiff NEW YORK LIBRARY ASSOCIATION ("NYLA") is a nonprofit
organization which dedicates itself to advancing the profession of
librarianship and information services as well as advancing the use
and understanding of libraries. NYLA has approximately 3,000 members,
both individuals and institutions, including public, school, academic,
and special libraries, and their librarians, trustees, and support
staff. NYLA sues on behalf of its members who use computer
communication systems and the patrons of their member libraries.

16. Plaintiff WESTCHESTER LIBRARY SYSTEM ("WLS"), a state-chartered
and funded, cooperative library system, serves the people of
Westchester County, New York through 38 independent member public
libraries in Westchester County. All WLS member libraries provide
online access to information databases and the World Wide Web. In
addition, WLS maintains its own site on the World Wide Web that
provides local and regional information, access to the WLS card
catalogue and direct links to hundreds of sites on the World Wide Web.
WLS sues on its own behalf and on behalf of its member libraries and
their patrons.

17. Plaintiff AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION
("ABFFE") was organized as a not-for-profit organization by the
American Booksellers Association in 1990 to inform and educate
booksellers, other members of the book industry, and the public about
the dangers of censorship and to promote and protect the free
expression of ideas, particularly freedom in the choice of reading
materials. ABFFE, most of whose members are bookstores in the United
States, sues on its own behalf, on behalf of its members who use
online computer communication systems, and on behalf of the patrons of
their member bookstores.

18. Plaintiff ASSOCIATION OF AMERICAN PUBLISHERS, INC. ("AAP") is a
national association in the United States of publishers of general
books, textbooks, and educational materials. Its approximately 200
members include most of the major commercial book publishers in the
United States and many smaller or non-profit publishers, including
university presses and scholarly associations. AAP's members publish
most of the general, educational, and religious books produced in the
United States and are active in all facets of the electronic medium,
including publishing a wide range of electronic products and services.
AAP sues on its own behalf, on behalf of its members who use online
computer communication systems, and on behalf of the readers of its
members' books.

19. Plaintiff BIBLIOBYTES, INC. is a company that sells and produces
electronic books via a World Wide Web site on the Internet. It is
incorporated in New Jersey and its principal place of business is in
Hoboken, New Jersey. It sues on its own behalf and on behalf of those
who use its online computer communication system.

20. Plaintiff MAGAZINE PUBLISHERS OF AMERICA, INC. ("MPA") is a trade
association for the consumer magazine industry. MPA has a membership
of approximately 200 companies, representing almost 800 general
interest consumer magazines, ranging from journals of literature, to
special interest publications, to information providers, to
multi-million circulation publications. Most of these magazines, 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. MPA sues on its own
behalf, on behalf of its members who use computer communication
systems and on behalf of the readers of its members' publications.

21. Plaintiff INTERACTIVE DIGITAL SOFTWARE ASSOCIATION ("IDSA") is a
non-profit trade association. IDSA's 45 members publish over 75% of
entertainment software in the United States. Many IDSA members market
their software through World Wide Web sites that often include
segments of the titles referred to as "demos." Some IDSA members make
their titles available online for play. The IDSA sues on behalf of its
members who use computer communication systems and on behalf of users
of its members' software.

22. Plaintiff PUBLIC ACCESS NETWORKS CORPORATION ("Panix") is an
Internet service provider located in New York City. Panix provides
access to the Internet to approximately 6,500 individual and business
subscribers throughout New York City and the surrounding area. Panix
also provides World Wide Web site maintenance, file storage, and
server support to organizations that seek to put information on the
World Wide Web. In addition to serving as an access provider, Panix
provides its own Internet content and assists its customers in
presenting content on the Internet; Panix also hosts online discussion
groups and chat rooms. Panix sues on its own behalf and on behalf of
its subscribers and other users of its services.

23. Plaintiff ECHO is an Internet service provider that offers an
online community and bulletin board system for people interested in
reading, writing, and conversation. ECHO offers e-mail services and
online conferences, and allows subscribers to create their own home
pages on the World Wide Web. Founded six years ago in New York City,
Echo has over 4,000 subscribers, who come together to share their
common passions in over 50 "conferences" -- online discussion groups
on topics as diverse as love, media, religion, civil liberties,
culture and travel. ECHO sues on its own behalf and on behalf of its
subscribers and other users of its services.

24. Plaintiff NEW YORK CITY NET ("NYC Net") is an Internet service
provider for the online gay and lesbian community. Launched in 1994,
NYC Net has approximately 2,000 subscribers and is the New York City
area's leading gay and lesbian online service and Internet service
provider, as well as a national virtual community center for the gay
and lesbian community. 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. NYC Net sues on its
own behalf and on behalf of its subscribers and other users of its
services.

25. Plaintiff ART ON THE NET ("art.net") is a not-for-profit
international artist site on the World Wide Web. Based in Menlo Park,
California, Art on the Net assists over 110 artists in maintaining
online studio or gallery spaces. In addition, Art on the Net hosts
mailing lists for artistic communities regarding relevant issues and
events and posts information about art events and artist shows. Art on
the Net sues on its own behalf, on behalf of the artists who utilize
its site and on behalf of users of its service.

26. Plaintiff PEACEFIRE is an non-profit organization created (i) to
disseminate information about the rights of minors in the context of
Internet use and censorship and (ii) to promote equal rights for
minors who use the Internet. Peacefire currently has over one hundred
members, most of whom are older minors. Peacefire sues on behalf of
itself and on behalf of its members who use online computer
communication systems.

27. Plaintiff AMERICAN CIVIL LIBERTIES UNION ("ACLU") is a nationwide,
nonpartisan organization of nearly 300,000 members dedicated to
defending the principles of liberty and equality embodied in the Bill
of Rights. The ACLU is incorporated in the District of Columbia and
has its principal place of business in New York City. The ACLU sues on
its own behalf, on behalf of others who use its online computer
communication systems, and on behalf of its members who use online
computer communication systems.

28. Defendant GEORGE PATAKI is the Governor of the State of New York.
As the Governor, Pataki is vested with the executive power of the
State of New York and must take care that the laws of the State of New
York are faithfully executed. Pursuant to this executive power, Pataki
signed the Act into law on November 1, 1996.

29. Defendant DENNIS VACCO is the Attorney General of the State of New
York. As the Attorney General, Vacco has the duty and responsibility
for the enforcement of the laws of the State of New York. He also
retains general prosecutorial authority to ensure that the laws are
faithfully executed.

FACTS

The Internet

30. The Internet is a decentralized, global medium of communications
that links people, institutions, corporations and governments around
the world. It is a giant computer network that interconnects
innumerable smaller groups of linked computer networks and individual
computers. 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.

31. Because the Internet merely links together numerous individual
computers and computer networks, no single entity or group of entities
controls the material made available on the Internet or limits the
ability of others to access such materials. Rather, the range of
digital information available to Internet users -- which includes
text, images, sound and video -- is individually created, maintained,
controlled and located on millions of separate individual computers
around the world.

32. The Internet presents extremely low entry barriers to anyone who
wishes to provide or distribute information or gain access to it.
Unlike television, cable, radio, newspapers, magazines or books, the
Internet provides the average citizen with an affordable means for
communicating with, accessing and posting content to a worldwide
audience.

33. The Internet is an invaluable information source and communication
tool which is used by millions of users in innumerable ways. Minors,
for example, use the Internet to do school homework, seek information,
play games and communicate with others.

34. There are also computer communication systems that are independent
of

the Internet. For example, computer bulletin board systems ("BBSs")
are stand-alone computer systems that allow subscribers to dial
directly from their computers into a BBS host computer. BBSs generally
offer their users a variety of information services, including e-mail,
online discussion groups, and information databases. BBSs generally
serve people interested in specialized subject matter or people from a
particular geographic region.

How Individuals Access the Internet

35. Individuals have several easy means of gaining access to computer
communication systems in general, and to the Internet in particular.
Many educational institutions, businesses, and individual communities
maintain a computer network linked directly to the Internet and
provide account numbers and passwords enabling users to gain access to
the network.

36. Many libraries provide their patrons with free access to the
Internet through computers located at the library; some libraries also
host online discussion groups and chat rooms. Many libraries also post
their card catalogs and online versions of material from their
collections.

37. Internet service providers ("ISPs") offer their subscribers modem
access to computers or networks linked directly to the Internet. Most
ISPs charge a monthly fee, but some provide free or very low-cost
access.

38. National "commercial online services," such as America Online,
CompuServe, Prodigy, and Microsoft Network, serve as ISPs and also
provide subscribers with additional services, including access to
extensive content within their own proprietary networks.

39. There are also a growing number of "cyberspace cafes," where
customers, for a small hourly fee, can use computers provided by the
cafe to access the Internet.

Ways of Exchanging Information on the Internet

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

41. Once an individual signs on to the Internet, there are a wide
variety of methods for communicating and exchanging information with
other users.

E-Mail

42. The simplest and perhaps most widely used method of communication
on the Internet is via electronic mail, commonly referred to as
"e-mail." Using one of dozens of available "mailers" -- software
capable of reading and writing an e-mail -- a user is able to address
and transmit via computer a message to a specific individual or group
of individuals who have e-mail addresses.

Discussion Groups, Mailing Lists, and Chat Rooms

43. Another of the most popular forms of communication over computer
networks are online discussion groups. Discussion groups allow users
of computer networks to post messages onto a public computerized
bulletin board and to read and respond to messages posted by others in
the discussion group. Discussion groups have been organized on many
different computer networks and cover virtually every topic
imaginable. Discussion groups can be formed by individuals,
institutions or organizations, or by particular computer networks.

44. "USENET" newsgroups are a very popular set of bulletin board
discussion groups available on the Internet and other networks. There
are currently USENET newsgroups on more than 15,000 different
subjects, and over 100,000 new messages are posted to these groups
each day.

45. Similarly, users also can communicate within a group by
subscribing to automated electronic mailing lists that allow any
subscriber to a mailing list to post a particular message that is then
automatically distributed to all of the other subscribers on that
list. These lists are sometimes called "mail exploders" or
"listservs."

46. "Chat rooms" also allow users to engage in simultaneous
conversations with another user or group of users by typing messages
and reading the messages typed by others participating in the "chat."
Chat rooms are available on the Internet, commercial online services,
and local BBSs. Although chat rooms are often set up by particular
organizations or networks, any individual user can start an online
"chat."

47. Online discussion groups, mailing lists, and chat rooms create an
entirely new global public forum -- analogous to the village green --
where individuals can associate and communicate with others who have
common interests, and engage in discussion or debate on every
imaginable topic.

The World Wide Web

48. The World Wide Web ("Web") is the most popular way to provide

and retrieve information on the Internet. Anyone with access to the
Internet and proper software can create "Web pages" or "home pages"
which may contain many different types of digital information -- text,
images, sound, and even video. The Web is comprised of millions of
separate "Web sites" that display content provided by particular
persons or organizations. Any Internet user anywhere in the world with
the proper software can create her own Web page, view Web pages posted
by others, and then read text, look at images and video, and listen to
sounds posted at these sites.

49. The Web was created to serve as a global, online repository of
knowledge, containing information from a diverse array of sources,
which is easily accessible to Internet users around the world. Though
information on the Web is contained on individual computers, each of
these computers is connected to the Internet through Web protocols
that allow the information on the Web to become part of a single body
of knowledge accessible by all Web users.

50. Many large corporations, banks, brokerage houses, newspapers and
magazines now provide online editions of their publications and
reports on the Web or operate independent Web sites. Many government
agencies and courts also use the Web to disseminate information to the
public. At the same time, many individual users and small community
organizations have established individualized home pages on the Web
that provide information of interest to members of the particular
organization, communities, and to other individuals.

51. To gain access to the information available on the Web, a person
uses a Web "browser" -- software, such as Netscape Navigator, Mosaic,
or Internet Explorer -- to display, print and download documents that
are formatted in the standard Web formatting language. Each document
on the Web has an address that allows users to find and retrieve it.

52. Most Web documents also contain "links." These are short sections
of text or image that refer and link to another document. Typically
the linked text is blue or underlined when displayed, and when
selected by the user on her computer screen, the referenced document
is automatically displayed, wherever in the world it actually is
stored. Links, for example, are used to lead from overview documents
to more detailed documents on the same Web site, for example, from
tables of contents to particular pages, and from text to
cross-references, footnotes, and other forms of information. For
example, plaintiff ALA's Web page provides links to several other Web
pages also offered by ALA, including "Libraries Online," "Library
Promotional Events," the "ALA Bookstore," and others.

53. Links may also take the user from the original Web site to another
Web site on a different computer connected to the Internet. For
example, plaintiff BiblioBytes, an online seller of electronic books,
has a Web page with a link to another bookseller, Electronic
Bookaisle, that sells certain titles not carried by BiblioBytes.

54. Through the use of these links from one computer to another, from
one document to another, the Web for the first time unifies the
diverse and voluminous information made available by millions of users
on the Internet into a single body of knowledge that can be easily
searched and accessed.

55. A number of "search engines" -- such as Yahoo, Magellan, Alta
Vista, WebCrawler, and Lycos -- are available free of charge to help
users navigate the World Wide Web. Once a user has accessed the search
service, she simply types a word or string of words as a search
request and the search engine provides a list of sites that match the
search string.

56. As can be seen from the various ways that individuals can exchange
information and communicate via this new technology, the Internet is
"interactive" in ways that distinguish it from traditional media. For
instance, users are not passive receivers of information as with
television and radio; rather, one can easily respond to the material
they receive or view online. In addition, "interactivity" means that
Internet users must actively seek out with specificity the information
they wish to retrieve and the kinds of communications in which they
wish to engage. For example, a user wishing to read articles posted to
a newsgroup must log on to the Internet and then connect to a USENET
server, select the relevant group, review the relevant header lines --
which provide brief content descriptions -- for each message, and then
access a particular message to read its content. Similarly, to gain
access to material on the World Wide Web, a user must know and type
the address of a relevant site or find the site by typing a relevant
search string in one of several available search engines.

The Range of Content Available on the Internet

57. The information made available on the Internet is as diverse as
its

users. For example, on the Internet, one can view 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 detail images of the ceiling of the Sistine
Chapel, or see the latest photographs transmitted by the Jupiter space
probe.

58. Content on the Internet is provided by the millions of Internet
users worldwide, and the content ranges from academic writings, to
art, to humor, to literature, to medical information, to music, to
news, to sexually oriented material. At any one time, the Internet
serves as the communication medium for literally tens of thousands of
global conversations, political debates, and social dialogues.

59. Although the overwhelming majority of the information on the
Internet is not sexually oriented, there is material available on the
Internet that might be considered indecent in some communities. For
example, an Internet user can read online John Cleland's
eighteenth-century novel Fanny Hill: Memoirs of a Woman of Pleasure;
view the digital photography of Diane Fenster; receive instructions
from the AIDS organization ACT UP on how to practice safer sex; and
discuss female genital mutilation in plaintiff ECHO's "politics
conference." Much of this material is similar, if not identical, to
material that is routinely distributed through libraries, bookstores,
record stores, and newsstands.

60. In addition, in the course of online conversations, discussions,
debates and e-mail exchanges -- just as in conversations on a park
bench or street corner -- many online speakers use language that might
be considered indecent.

The Statutory Language at Issue

61. In 1996, the New York Senate and State Assembly amended Section
235.21 of the New York Penal Law. The Act was signed by Governor
George Pataki and became effective on November 1, 1996.

62. The Act amends Section 235.21 by adding a new subdivision 3,
entitled "Disseminating indecent material to minors in the second
degree." 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.

63. Violation of Section 235.21 is a Class E felony punishable by one
to four years in prison.

64. Speech on the Internet is generally available to anyone with
access to this technology. Thus, the Act restricts speech over the
World Wide Web, chat rooms, mailing lists, and discussion groups. In
other words, because minors have access to all of these forums, any
communication in these forums could be subject to the Act because it
constitutes "use [of] any computer communication system . . . to
initiate or engage in . . . communication with a person who is a
minor." As the New York State Executive Chamber explained, the Act
does not require "proof that the defendant knew she was communicating,
or intended to communicate, with a minor." Memorandum from the State
of New York Executive Chamber filed with Senate Bill No. 210-E (Sept.
4, 1996).

65. The Act also applies to both commercial and non-commercial
dissemination of material, and thus specifically applies to libraries,
educational institutions, and non-profit organizations.

66. Indecent material for the purpose of the relevant section is
defined as material that is "harmful to minors." Section Section
235.20(6) defines "harmful to minors" for purposes of the Act 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.

67. The Act makes no distinction between material that may be
"harmful" to very young minors and material that may be "harmful" to
older minors, such as teenagers.

68. The Act does not define the relevant "community" for purposes of
determining what is "patently offensive" in the global medium of
cyberspace.

69. The Act also does not define what comprises a work "considered as
a

whole" in the context of the Internet, in which, for example, the
World Wide Web is a seamless, interconnected set of texts, sound,
graphics and games provided by different content providers and located
on different computers around the world.

70. The Act provides six affirmative defenses to criminal liability
under Section 235.21(3). Section 235.15(1) provides the following
affirmative defense to prosecution under Section 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.

71. Section 235.20 provides the following four defenses to prosecution
under Section 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.

72. Section 235.24 provides the following defense to Section
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).

The Impact of the Act on the Internet

73. Because of the nature of the Internet, the Act will ban certain
constitutionally protected speech among adults.

74. Most of the millions of users on the Internet are speakers and
content providers subject to the terms of the Act. Anyone who sends an
e-mail, participates in a discussion group or chat room, or maintains
a home page on the World Wide Web is subject to the Act because their
communication might be accessed by a minor in the State of New York.
Given the technology of the Internet, there are no reasonable means
for these speakers to ascertain the age of persons who access their
messages, or of restricting or preventing access by minors to certain
content. From the perspective of these speakers, the information that
they make available on the public spaces of the Internet must either
be made available to all users of the Internet, including users who
may be minors, or not made available at all.

75. For instance, when a user posts a message to a USENET discussion
group, it is automatically distributed to hundreds of thousands of
computers around the world, and the speaker has no ability to control
who will access her message from those computers. Similarly, users who
communicate on mailing lists have no way to determine the ages of
other subscribers to the list. Finally, the overwhelming majority of
content providers on the World Wide Web have no way to verify the age
of persons who access their Web sites. Although some commercial
content providers could require their users to provide a credit card
before obtaining information, this option is simply not practical for
the majority of Web sites, whether commercial or non-commercial.

76. Similarly, the vast majority of speakers on the Internet also lack
any mechanism for labeling or segregating specific communications --
whether distributed by e-mail, discussion groups, mailing lists, chat
rooms or Web sites -- in a way that would enable those communications
to be automatically blocked or screened from minors by software or
other capabilities.

77. Even if age verification, screening, or segregation were
technologically or economically feasible, such requirements would
fundamentally alter the nature and values of the new computer
communication medium, which is characterized by spontaneous,
instantaneous, albeit often unpredictable, communication by hundreds
of thousands of individual speakers around the globe and provides an
affordable and often seamless means of accessing an enormous and
diverse body of information, ideas and viewpoints. Pre-registration or
screening requirements would undermine the unique characteristics of
this new technology.

78. Finally, because online speakers have no ability to identify who
accesses their messages, it also is not possible for a speaker or
content provider in cyberspace to determine whether the "persons" or
the "audience" to whom they are communicating have any "scientific,
educational, governmental" or other justification for viewing their
communications.

79. For these reasons, there is no practical way for content providers
to keep sexually frank materials from minors on the Internet. Thus,
none of the defenses in the Act offer an effective and reasonable
means for the plaintiffs to insulate themselves from criminal
liability under the Act.

80. In addition, the Act's age verification and identification
requirements would make it impossible for online users to engage in
constitutionally protected anonymous speech on matters of public and
private importance.

81. Moreover, the Act will impact speech across the entire Internet --
not just in the State of New York -- because it is likewise impossible
for Internet users to determine the geographic location of persons who
access their information. An Internet user has no way to determine
whether information posted to the World Wide Web, discussion groups or
chat rooms will be accessed by persons residing in the State of New
York. The various sites on the Internet can be accessed by anyone in
the world, and therefore there is no way for speakers to ensure that
New Yorkers will not view their communications. Thus, all users, even
if they do not reside in New York or intend to communicate with New
Yorkers, must comply with the terms of the Act.

82. Because it is technologically and economically infeasible for the
majority of Internet speakers to restrict minors from New York from
accessing their communications, the Act effectively would require
almost all discourse on the Internet -- whether among New Yorkers or
among users anywhere in the world -- to be at a level suitable for
young children. The Act therefore would ban an entire category of
constitutionally protected speech between adults on the Internet.

The Ineffectiveness of the Act and the Effectiveness of Alternative
Means

83. Because of the global nature of the Internet, defendants cannot
demonstrate that the Act would likely reduce the availability of
sexual content on the Internet to minors in New York State.

84. As of May 1996, at least 40% of the content provided on the
Internet originated abroad. All of the content on the global Internet
is equally available to all Internet users worldwide and may be
accessed as easily as content that originates locally. Because it is
not technologically possible to prevent content posted abroad from
being available to Internet users in the State of New York, the Act
will not accomplish its purported purpose of keeping sexually oriented
content from minors in New York State. In addition, adult-oriented
content providers in the United States could simply circumvent the Act
by moving their content to sites located abroad.

85. Conversely, there are many alternative means that are more
effective at assisting parents in limiting a minor's access to certain
material if desired.

86. Commercial online services like America Online, Prodigy, and
CompuServe provide features to prevent children from accessing chat
rooms and to block access to Web sites and newsgroups based on
keywords, subject matter, or specific newsgroup. These services also
offer screening software that blocks messages containing certain
words, and tracking and monitoring software to determine which
resources a particular online user (e.g., a child) has accessed. They
also offer children-only discussion groups that are closely monitored
by adults.

87. Online users can also purchase special software applications,
including SurfWatch and Net Nanny, that enable them to control access
to online resources. These applications allow users to block access to
certain resources, to prevent children from giving personal
information to strangers by e-mail or in chat rooms, and to keep a log
of all online activity that occurs on the home computer.

Relationship of Plaintiffs to the Act

88. Plaintiffs (and the plaintiffs' members, subscribers, patrons, and

customers) interact with and use the Internet in a wide variety of
ways, including as content providers, access providers, and users. The
Act burdens plaintiffs in all of these capacities.

89. Plaintiffs who are users and content providers are expressly
subject to the Act. These plaintiffs fear prosecution under the Act
for communicating, sending, displaying, or distributing material that
might be deemed indecent by certain communities in New York State.
They also fear liability for material posted by others to their online
discussion groups, chat rooms, mailing lists, and Web sites.
Plaintiffs have no way to comply with the Act and are left with two
equally untenable alternatives: (i) risk prosecution under the Act, or
(ii) attempt to engage in self-censorship and thereby deny adults and
older minors access to constitutionally protected material.

90. Plaintiffs who are access providers are expressly subject to the
Act. Many plaintiffs who are access providers are also content
providers, and they are unclear how their dual role will affect their
liability under the Act. Although the Act provides a limited defense
for access providers, these plaintiffs reasonably fear that the
defense will not be construed and applied as broadly as is necessary
to protect their rights, and they fear they may be directly subject to
prosecution under the Act.

91. Due to the interstate and international flow of information via
the Internet, the Act will unjustifiably burden interstate commerce
and regulate conduct that occurs wholly outside the State. For
instance, the Act will chill

speakers outside of New York State and speech that occurs wholly
outside the borders of New York State. Content providers, such as
BiblioBytes and Art on the Net, which are located outside of New York
State have no feasible way to determine whether their information will
be accessed or downloaded by someone who is located in New York State.
Just as a user of the Internet cannot identify the age of another user
of the Internet, one also cannot identify where a particular user or
speaker resides, or from where a particular user may be accessing or
downloading information on the Internet. Due to the nature of the
technology, a non-New Yorker will be forced to self-censor her speech
on the Internet if she wishes to comply with the Act. If she does not,
she risks the possibility that a minor from New York will gain access
to this information and subject her to prosecution in New York State.
Therefore, the Act will interfere significantly with the interstate
flow of information and likewise with interstate commerce.

92. Moreover, interstate and international computer communication
networks constitute an area of the economy and society that
particularly demands uniform rules and regulations. If each state
implements its own regulations, as New York has done, regarding what
information can be legally distributed via this new technology,
interstate commerce will be greatly inhibited and disrupted as persons
around the world try to discern what can and cannot be communicated in
the many different jurisdictions connected to these networks.

American Library Association ("ALA") and Freedom to Read Foundation,
Inc. ("FTRF")

93. Plaintiffs ALA and FTRF and their library members serve as both
access and content providers on the Internet. Because the Internet
offers their patrons a unique opportunity to access information for
free, many libraries provide their patrons with facilities that
patrons can use to access the Internet. Many libraries also have their
own World Wide Web sites on the Internet and use the Internet to post
card catalogues, post information about current events, sponsor chat
rooms, provide textual information or art, or post online versions of
materials from their library collections. Patrons can, for example,
access the Web site of certain libraries from anywhere in the country
to peruse the libraries' card catalogues, review an encyclopedia
reference, or check a definition in the dictionary.

94. Some of the materials provided or made available by libraries are
sexually oriented. For example, ALA member libraries' online card
catalogues include such works as Forever by Judy Blume, Women on Top
by Nancy Friday, Changing Bodies, Changing Lives by Ruth Bell, Our
Bodies, Our Selves by the Boston Women's Health Collective and It's
Perfectly Normal by Robie Harris.

95. If the Act is not enjoined, libraries would be chilled from both
posting and providing access to materials on the Internet that might
be deemed indecent by some communities because of fear of prosecution.
Adult library patrons and Internet users would thus be deprived of
access to these constitutionally protected library materials. Given
the global and unrestricted nature of the Internet and the past
attempts by persons to ban literature and reference items from library
collections, many of ALA's and FTRF's members may choose not to post a
substantial amount of expressive material at all -- material that many
adults might consider useful for themselves or their own children --
rather than risk prosecution for posting material that some community
in New York might deem indecent.

New York Library Association ("NYLA")

96. Plaintiff NYLA and its library members also acknowledge that the
Internet provides a unique and far-reaching means for libraries to
make information available to the public. If not enjoined, the Act
would have a chilling effect on the basic mission of NYLA's member
libraries: to make available to all people the widest array of
information possible and to maintain the confidentiality of the user.
The Act would impede NYLA's member libraries from providing
information to patrons on a confidential basis by requiring that
libraries verify identification or some other proof of adult status
before allowing a patron using library facilities to access sexually
oriented information over the Internet and before allowing an Internet
user to access similar information on these libraries' Web sites.

97. The diverse information provided or made available by NYLA's
members over the Internet contains some material that is sexually
oriented. For example, member patrons can use library-provided
facilities to access a sexually oriented article about rap artists Dr.
Dre and Snoop Doggy Dog from Rolling Stone magazine and an Elle
magazine article regarding biological explanations for women's sexual
infidelity.

98. If the Act is not enjoined, it would force NYLA's member libraries
to avoid providing this constitutionally protected information on the
Internet and to stop providing Internet access to their patrons or
otherwise risk criminal prosecution under the Act. Library patrons and
Internet users would thus be denied access to constitutionally
protected library materials because of the Act's chilling effect on
free speech.

Westchester Library System ("WLS")

99. Plaintiff WLS, as a content and access provider, offers its
patrons and other Internet users access to diverse information and
resources. WLS libraries maintain approximately 130 computers that,
through the WLS online network, provide its patrons with access to
different commercial and library databases and the World Wide Web. In
addition, WLS maintains its own Web site which offers local and
regional information and direct links to hundreds of sites and home
pages on the World Wide Web.

100. Some of the content that can be accessed by WLS patrons might be
considered indecent in some communities. For example, WLS patrons can
also use the library's "NetExpress" direct link to art museums to view
nude paintings by Paul Cezanne and Henri Matisse. In addition, WLS
libraries provide access to the search engine Yahoo, which has a sex
directory through which a WLS patron can access sexually oriented
sites.

101. WLS fears that, if the Act is not enjoined, it would either have
to terminate or severely limit the scope of the online services it
provides to its patrons or risk criminal prosecution. WLS patrons fear
that they would then be denied access to the constitutionally
protected information and resources provided by WLS Internet access.

American Booksellers Foundation for Free Expression ("ABFFE")

102. Plaintiff ABFFE has hundreds of bookseller members from coast to
coast, as well as in the State of New York, many of whom sell
materials that deal frankly with the subject of human sexuality
although ABFFE's members are not "adult bookstores." For example, some
member bookstores have their own Web pages that discuss the content of
books sold in stores. Most member bookstores use the Internet and
electronic communications to obtain information and excerpts of books
from publishers. For example, member booksellers may review current
popular titles such as Primary Colors by Anonymous and Sabbath's
Theatre by Philip Roth, which include sexually oriented passages.

103. ABFFE members' right to learn about, acquire, and distribute
sexually oriented materials, and their patrons' right to purchase such
sexually oriented materials, would be seriously infringed by the Act
if it is not enjoined because ABFFE members and the publishers with
which they transact business would be forced to self-censor or risk
prosecution under the Act.

Association of American Publishers, Inc. ("AAP")

104. Plaintiff AAP sues on behalf of its members who are content
providers and users of the Internet. Although their business is
primarily based on print publishing, AAP's members are very actively
involved in the Internet. AAP's members create electronic products to
accompany and supplement their printed books and journals; create
custom educational material on the Internet; communicate with authors
and others, receiving manuscripts, and editing, typesetting, and
designing books electronically; transmit finished product to licensed
end-user customers; communicate with bookstores and other wholesale
and retail accounts; and promote authors and titles online.

105. Many of AAP's members have Web sites and provide information to
the world on the Internet. Some of the content provided by AAP's
members might be considered indecent in some communities. For example,
AAP member Bantam Doubleday Dell uses a Web page and e-mail to sell
its catalogue of books, which includes Are You There God? It's Me
Margaret by Judy Blume and The Chocolate Wars by Robert Cormier.

106. Many of the efforts to ban books in various communities have been
directed at books published by AAP's members, and AAP fears that the
Act will spawn similar efforts directed at AAP's online publishing. If
the Act is not enjoined, AAP members would be forced either to risk
criminal liability or stop providing online access to constitutionally
protected books and other related materials that might be deemed
indecent by some communities.

BiblioBytes, Inc.

107. Plaintiff BiblioBytes produces electronic books for sale over the
World Wide Web; BiblioBytes has over a thousand titles in a variety of
genres including romance novels, erotica, classics, adventure and
horror stories.

108. BiblioBytes offers some books and information on its site free of
charge. Users of the BiblioBytes site can also purchase electronic
books by credit card or through other payment options. BiblioBytes now
offers its entire collection to all individuals, including minors.
BiblioBytes fears prosecution under the Act for disseminating
information that may be deemed indecent.

109. Some of the electronic publications offered by BiblioBytes
contain text that is sexually oriented. For example, Bibliobytes
offers a free version of the novel Fanny Hill: Memoirs of a Woman of
Pleasure, by John Cleland, which has been found by one New York court
to be "harmful to minors." BiblioBytes offers for sale Love Ain't
Nothing But Sex Misspelled, a collection of short stories by Harlan
Ellison which contains sexually oriented passages, and Panaflex X, a
fictional account of a woman trying to get out of the pornography
industry.

110. If the Act is not enjoined, BiblioBytes would have to choose
between no longer offering books that might be deemed indecent or
risking prosecution under the Act.

Magazine Publishers of America, Inc. ("MPA")

111. Plaintiff MPA sues on behalf of its members, who are consumer
magazines throughout the United States 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. Some of these magazines contain sexually
frank material that could be deemed indecent in some communities.

112. Some MPA members are concerned that the Act will require them to
censor the online version of their print editions. For this reason,
MPA believes that the Act imposes unconstitutional press censorship
that will substantially limit the Internet's potential to enhance the
diversity, availability, timeliness, quality, and utility of magazines
by creating a powerful disincentive for publication through the use of
interactive media technologies. If the Act is not enjoined, MPA
members might be criminally liable for their sexually oriented content
if they do not self-censor.

Interactive Digital Software Association ("IDSA")

113. Plaintiff IDSA sues on behalf of its members, who are content
providers and on behalf of users of its members' software titles. In
addition to publishing software for sale in retail outlets, IDSA
members also make their entertainment software available to the public
on the Internet for demonstration ("demos"), purchase and play. Some
IDSA members host chat rooms on

strategy and permit consumers to engage in playing games online
against or with each other.

114. IDSA members are concerned that they could face criminal
prosecution under the Act for online publication of software marketed
and labeled for adult players or the operation of chat rooms intended
for adult participants.

Public Access Networks Corporation ("PANIX")

115. Plaintiff Panix is an access provider and content provider on the
Internet; its subscribers use the Internet to communicate in a variety
of ways. As an access provider and content provider, Panix fears that
it is at risk of prosecution under the Act for assisting others in
disseminating material that might be deemed indecent. In addition,
Panix subscribers fear criminal liability for content that they post
on their home pages and remarks they make in chat rooms.

116. For example, Panix sponsors two local newsgroups on women's and
homosexual issues where Panix customers discuss, often in very
explicit language, such matters as menstruation, pregnancy and safe
sex practices. Panix also hosts customer Web sites that include
graphic instructions for teenagers about condom use, sexually oriented
pictures, and reference information about New York body piercing
establishments. Panix also carries an extensive range of USENET
newsgroups that include pictures and sound files depicting sexually
oriented material, discussion of medical issues and sexual practices,
and erotic short stories.

117. Panix and their subscribers and users fear that, if the Act is
not enjoined, they would be forced either to refrain from providing or
engaging in communications that some communities might find to be
indecent or risk prosecution under the Act.

Echo

118. Plaintiff ECHO, an Internet service and content provider,
provides a "virtual salon" for Internet users interested in reading,
writing, and conversation. ECHO and its subscribers provide content on
the Internet through the Web sites, including personal home pages, and
over 50 "conferences" -- online discussion groups oriented to
subscriber interests. ECHO subscribers have access to and provide
content on a variety of sites that might be considered indecent. For
example, on ECHO's "lambda conference," subscribers discuss gay and
lesbian topics such as "queers and the church" and sex toys. On ECHO's
"politics conference," subscribers discuss issues such as female
circumcision. In addition, ECHO subscriber Cleo Odzer has a Web home
page that provides a variety of sexually oriented content relating to
her books and public access television show, including an excerpt from
Patpong Sisters: An American Women's View of the Bangkok Sex World,
Odzer's non-fictional account of her experiences in Bangkok's
red-light district.

119. As an access and content provider, ECHO fears that it is at risk
of prosecution under the Act for assisting others in disseminating
material that might be deemed indecent. As speakers and content
providers, ECHO and its subscribers fear prosecution for communicating
material that might be deemed indecent.

New York City Net ("NYC Net")

120. Plaintiff NYC Net believes that the Internet provides a critical
avenue of communication for gays and lesbians worldwide, many of whom
experience discrimination and harassment in their geographic
communities. As an access and content provider, NYC Net serves as both
an information source for gay and lesbian individuals in the New York
community and as a "virtual" online community for gays and lesbians
nationwide.

121. NYC NET offers Internet access services to facilitate the use of
the Internet by the gay and lesbian community. In addition to offering
basic access to the Internet, NYC NET hosts many discussion groups and
chat lists exclusively for gay men and lesbians. Over 30 gay and
lesbian community, political and professional groups offer content and
resources on NYC Net.

122. Some of the content available to and provided by NYC Net
subscribers might be deemed indecent by some communities. For example,
NYC NET does not moderate its discussion groups but is aware that
topics have included safe sex practices, erotic imagery and
prostitution.

123. NYC NET does not want to restrict minors from having access to
its services. In fact, a primary goal of NYC Net is to provide
information and an online community to gay and lesbian teenagers, many
of whom are struggling with feelings of confusion and isolation, as
well as to straight youth who want information about homosexuality.

124. In addition, NYC NET believes that it is essential that people be
able to access its services anonymously. Especially given the fact
that gays and lesbians have historically been unfairly targeted under
other censorship laws, NYC NET is fearful that the Act will be used to
prosecute it and its members for disseminating material that could be
deemed indecent in some communities.

125. If the Act is not enjoined, NYC Net and its subscribers would be
forced either to risk criminal liability or limit the resources
available to and communications exchanged by subscribers in its gay
and lesbian community.

Art on the Net

126. Plaintiff Art on the Net ("art.net") believes that the World Wide
Web provides a unique and low-cost opportunity to artists to exhibit
their work to the world. Over 110 international artists curate and
maintain their own online studio or gallery spaces on the art.net Web
site. Artists may join the art.net site by paying a small annual fee
and committing to donate one piece of their art to the site. The
art.net site is visited by 40,000-50,000 people daily, and often leads
to art purchases or to off-line shows and exhibits.

127. Some of the art exhibited through art.net uses sexual images. For
example, Michael Betancourt's studio includes a series of photographs
that use assemblages of male and female body parts, including nude
images, sexual organs and graphic sexual activity, to create abstract
landscapes (related to the work of Salvador Dali and Hans Bellmer). In
a discussion of the images on a USENET newsgroup, some Internet users
found Betancourt's photographs to be "pornographic." Diane Fenster
also maintains a studio of digital photography on the art.net site
featuring "Two Running Rails of Mercury," which depicts a supine nude
woman blending into railroad tracks against the background of a small
town. This piece was one of three works from Fenster's "A Ritual of
Abandonment" series that were removed from a Baltimore corporate
exhibit because of their sexually graphic nature. In addition, art.net
features poets whose work might be considered indecent; for example,
Sylvia Chong's poetry on the art.net site has sexually oriented themes
and metaphors.

128. In addition to providing the art.net galleries and studios, Art
on the Net provides a range of other services to its member artists.
The Web site posts schedules of art events and artist shows and has
links to other art-related sites including artist resources, museums,
and exhibits. Art on the Net also hosts mailing lists for different
artistic communities on relevant events and issues; these mailing
lists include artists who are not members of Art on the Net.

129. If the Act is not enjoined, Art on the Net would be obliged
either to risk criminal prosecution for providing constitutionally
protected artistic expression or stop featuring paintings, poems, and
other art works that some communities might deem indecent.

Peacefire

130. Plaintiff PEACEFIRE believes that the Internet offers a unique
opportunity for minors to communicate and to access valuable
information.

Peacefire was formed to protect the right of citizens under age 18 to
use the Internet.

131. Peacefire's members are primarily minors who communicate over the
Internet through e-mail, discussion groups, mailing lists, and Web
sites. These minors are of varying ages; many are close to adulthood.
They use the Internet to communicate and access a wide variety of
information. Some of the online information and resources available to
Peacefire's members is socially valuable and sometimes life-saving for
minors, especially older minors. For example, it

is critical that older minors have access on an anonymous basis to
information concerning gay and lesbian human rights abuses, AIDS
prevention and eating disorder recovery. This information, despite its
value to older minors, might be deemed indecent, especially to younger
minors.

132. Because the Act does not distinguish between material deemed
harmful to younger versus older minors, Peacefire's members fear that
the Act will prevent its members from accessing information that is
socially valuable to them.

133. Peacefire fears that the Act's age verification and screening
requirements, if they could be implemented at all, will cause many
content providers to exclude minors from their sites altogether rather
than to take on the arduous task of deciding which content might be
"harmful" to minors and which is not, or drawing the line between what
is "harmful" as to older minors and what is "harmful" as to younger
minors. Thus, the Act will have the effect of preventing older minors
from having access to information that is clearly constitutionally
protected even as to them.

134. Currently, there is no way on the Internet to tell whether a user
is an adult or a minor. This system protects minors from aged-based
discrimination, harassment, and coercion. Peacefire fears that the
imposition of age verification and screening on the Internet would
actually put minors at risk, rather than protecting them, by singling
them out to those who might take advantage of them.

135. Peacefire maintains its own Web site to post information related
to online censorship. For example, many pages of Peacefire's site
discuss filtering and blocking technologies in order to educate the
public and provide the organization's position on such topics.
Peacefire's Web site is currently visited by as many as 300 Internet
users per day. Although its site does not contain any sexually
oriented material, Peacefire's Web site provides links to Web sites of
other political organizations whose sites may contain sexually
oriented material. Peacefire also utilizes newsgroups and mailing
lists to disseminate censorship-related information.

American Civil Liberties Union ("ACLU")

136. In addition to its legal advocacy to uphold the Bill of Rights,
plaintiff ACLU has long devoted considerable resources to public
education about civil liberties. Since 1993, the ACLU public education
efforts have included extensive online resources that offer electronic
copies of ACLU publications, reports, court briefs, news releases, and
other material related to the ACLU's legal, legislative, educational
and advocacy work.

137. The ACLU maintains its extensive online resources through America
Online and the Internet's World Wide Web. Many of the ACLU's online
databases contain material which includes sexual subject matter.
Examples include copies of ACLU court briefs in cases involving
obscenity, arts censorship, and discrimination against gays and
lesbians.

138. The ACLU also hosts unmoderated online discussion groups that
allow citizens to discuss and debate a variety of civil liberties
issues. These services allow online users to express their uncensored
views on civil liberties issues and to interact with ACLU staff or
featured speakers. Many of the communications in the ACLU's discussion
groups have sexual content, for example, a discussion of masturbation
in the context of the firing of former Surgeon General Jocelyn Elders;
a discussion of the content of Howard Stern's best-selling book,
Private Parts; a discussion of why the word "fuck" has such expressive
power; and a discussion of the defense of pornography and other erotic
expression under the First Amendment.

139. The ACLU does not moderate its computer communication systems
because such editing or censorship would be antithetical to the ACLU's
belief in freedom of speech. Furthermore, the ACLU considers minors to
be an important audience for its online resources. The ability of
minors to participate in chat rooms or discussion groups with other
minors and with adults is a vital part of their education. It is
particularly important that minors be able to access information about
their rights and to learn about and debate controversial issues.

140. In addition to its own online resources, ACLU staff and members
use other online services such as e-mail, outside discussion groups,
and online mailing lists as an important low-cost method of
communicating and sharing documents and information with each other
and with those outside of the ACLU. Some of this material is also
sexually oriented or contains descriptions of the human body or human
reproduction.

141. If the Act is not enjoined, the ACLU would be compelled either to
refrain from offering constitutionally protected civil liberties
materials and from sponsoring constitutionally protected political
debates or to face potential criminal prosecution.

CAUSES OF ACTION

First Cause of Action: Violation of Adults' Rights Under the First and
Fourteenth Amendments of the United States Constitution

142. Plaintiffs repeat and reallege paragraphs 1-141.

143. The Act violates the First and Fourteenth Amendments of the
United States Constitution on its face and as applied because it
creates an effective ban on constitutionally protected speech by and
to adults.

144. The Act violates the First and Fourteenth Amendments because it
is not the least restrictive means of accomplishing any compelling
governmental purpose.

145. The Act violates the First and Fourteenth Amendments because it
is substantially overbroad.

Second Cause of Action: Violation of Older Minors' Rights Under the
First and Fourteenth Amendments of the United States Constitution

146. Plaintiffs repeat and reallege paragraphs 1-141.

147. The Act violates the First and Fourteenth Amendments of the
United

States Constitution because it interferes with the rights of minors to
access and view material that is not harmful to them.

148. The standard of "harmful to minors" is the statutory formulation
of "obscenity" as to minors and is variable, depending on age and
maturity. The Act is unconstitutional because it prohibits the
dissemination of any material with sexual content that is "harmful to
minors" of any age, despite the fact that the material will not be
"harmful" to all minors.

Third Cause of Action: Violation of the Right to Communicate and
Access Information Anonymously Under the First and Fourteenth
Amendments of the United States Constitution

149. Plaintiffs repeat and reallege paragraphs 1-141.

150. The Act violates the First and Fourteenth Amendment right to
communicate and access information anonymously.

Fourth Cause of Action: Vagueness in Violation of the First, Fifth,
and Fourteenth Amendments of the United States Constitution

151. Plaintiffs repeat and reallege paragraphs 1-141.

152. The Act is unconstitutionally vague, in violation of the First,
Fifth, and Fourteenth Amendments, because it fails to define the
relevant "community" for determining what is harmful to minors on the
global Internet and because the Act fails to distinguish between
material that may be "harmful" to very young minors from material that
may be "harmful" to teenagers.

Fifth Cause of Action: Violation of the Commerce Clause of the United
States Constitution

153. Plaintiffs repeat and reallege paragraphs 1-141.

154. The Act violates the Commerce Clause because it regulates
communications which take place wholly outside of the State of New
York.

155. The Act violates the Commerce Clause because it constitutes an
unreasonable and undue burden on interstate and foreign commerce.

156. The Act violates the Commerce Clause because it subjects
interstate use of the Internet to inconsistent regulations.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs respectfully request that the Court:

A. Declare that N.Y. Penal Law Section 235.21(3) violates the First,
Fifth and Fourteenth Amendments and the Commerce Clause of the United
States Constitution;

B. Preliminarily and permanently enjoin defendants from enforcing the
above-noted provision;

C. Award plaintiffs costs and fees pursuant to 42 U.S.C. Section 1988;
and

D. Grant plaintiffs such other and further relief as the Court deems
just and proper.

Dated: New York, New York

January 14, 1997

Respectfully submitted,

__________________________

Christopher A. Hansen (CH-6776) Ann Beeson AMERICAN CIVIL LIBERTIES
UNION 132 West Forty-Third Street New York, New York 10036

Arthur N. Eisenberg (AE-2012) NEW YORK CIVIL LIBERTIES UNION 132 West
Forty-Third Street New York, New York 10036

Michael K. Hertz (MH-5587) Michele M. Pyle(1) LATHAM & WATKINS 885
Third Avenue Suite 1000 New York, New York 10022

Michael A. Bamberger (MB-9577) SONNENSCHEIN NATH & ROSENTHAL 1221
Avenue of the Americas New York, New York 10020 Attorneys for
Plaintiffs

(1)Awaiting admission to the Bar.