                           PUBLISHED
                                             Filed: June 24, 2004

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


PSINET, INCORPORATED;                    
CHARLOTTESVILLE SEXUAL HEALTH &
WELLNESS CLINIC; PORTICO
PUBLICATIONS, LTD., Publisher of
Charlottesville Weekly; SILVERCHAIR
SCIENCE COMMUNICATIONS,
INCORPORATED; VIRGINIA ISP
ALLIANCE; ROCKBRIDGE GLOBAL
VILLAGE; AMERICAN BOOKSELLERS
FOUNDATION FOR FREE EXPRESSION;
THE PERIODICAL AND BOOK
ASSOCIATION OF AMERICA,
INCORPORATED; FREEDOM TO READ
FOUNDATION; SEXUAL HEALTH
NETWORK; CHRIS FILKINS, Proprietor
of the Safer Sex Institute; HARLAN
                                            No. 01-2352

ELLISON; THE COMIC BOOK LEGAL
DEFENSE FUND; SUSIE BRIGHT; A
DIFFERENT LIGHT BOOKSTORES;
LAMBDA RISING BOOKSTORES;
BIBLIOBYTES; PEOPLE FOR THE
AMERICAN WAY,
                 Plaintiffs-Appellees,
                 and
UNITED STATES INTERNET SERVICE
PROVIDER ASSOCIATION,
                          Plaintiff,
                  v.
                                         
2                      PSINET, INC. v. CHAPMAN



WARREN D. CHAPMAN,                      
Commonwealth Attorney; JAMES L.
CAMBLOSS, III, Commonwealth             
Attorney,
             Defendants-Appellants.
                                        

                               ORDER

    Appellants filed a petition for rehearing and rehearing en banc.

  Judges Spencer and Davis voted to deny the petition for rehearing,
and Judge Niemeyer voted to grant it.

   On the poll requested by a member of the court on the petition for
rehearing en banc, Judges Widener, Niemeyer, Luttig, and Duncan
voted to grant rehearing en banc, and Judge Michael voted to deny
rehearing en banc. Chief Judge Wilkins, and Judges Wilkinson, Wil-
liams, Motz, Traxler, King, Gregory, and Shedd disqualified them-
selves from participating in this case.

   The petition for rehearing is denied, and, because the poll on
rehearing en banc failed to produce a majority of judges in active ser-
vice in favor of rehearing en banc, the petition for rehearing en banc
is also denied. Judge Niemeyer wrote an opinion dissenting from the
denial of rehearing en banc.

                                       Entered for the Court,

                                       /s/ Patricia S. Connor
                                               CLERK

NIEMEYER, Circuit Judge, dissenting from the denial of rehearing
en banc:

  By a vote of 4-1, judges of this court voted to rehear this case en
banc. Because 8 judges disqualified themselves from voting, how-
                       PSINET, INC. v. CHAPMAN                        3
ever, the case will not be reheard. See Fourth Circuit Local Rule 35(b)
(requiring for en banc review the vote of a majority of circuit judges
who are in regular, active service). This procedural bar is particularly
unfortunate as it applies to this seminal First Amendment case
because the law of the Fourth Circuit is now written solely by two
district judges who were designated to sit on the three-judge panel,
and not by any circuit judge.

   The panel majority struck down as unconstitutional Virginia’s nar-
rowly tailored regulation of pornography on the Internet. See Va.
Code Ann. § 18.2-391(A) (1999); PSINet, Inc. v. Chapman, 362 F.3d
227 (4th Cir. 2004). The Virginia statute was originally patterned on
a statute upheld by the Supreme Court in Ginsberg v. New York, 390
U.S. 629 (1968), and the Virginia version was specifically upheld by
us against a First Amendment challenge in American Booksellers
Association, Inc. v. Virginia, 882 F.2d 125, 127-28 (4th Cir. 1989),
cert. denied, Virginia v. American Booksellers Association, Inc., 494
U.S. 1056 (1990). When Virginia clarified this statute in 1999 to
make explicit that its regulation applies to the electronic medium,
however, this second facial challenge was launched, and the panel
majority has now employed the 1999 clarification as a rationalization
to reexamine the statute and to reverse our previous holding in Ameri-
can Booksellers.

   To protect juveniles from open displays of sexually explicit materi-
als, Virginia adopted its regulation of pornography in 1985, making
it unlawful "to knowingly display for commercial purpose" porno-
graphic materials that are harmful to juveniles "in a manner whereby
juveniles may examine and peruse" them. Va. Code Ann. § 18.2-
391(a) (1985). Materials regulated by the statute included any "visual
representation or image" or any "printed matter however reproduced,
or any sound recording." Id. By a 1999 amendment to this statute,
Virginia made it explicit that "visual representation or image"
included any "electronic file or message." Va. Code Ann. § 18.2-
391(A) (1999). It is this 1999 amendment that led to the second facial
challenge of the statute.

   Considering the statute in the context of the Internet, the district
court recognized that the Virginia statute is limited to commercial dis-
plays of pornography and also that credit card identification systems
4                      PSINET, INC. v. CHAPMAN
and PIN numbers, as well as age verification services, are now tech-
nologically available to place such commercial pornographic materi-
als in restricted zones in the Internet. PSINet, Inc. v. Chapman, 167
F. Supp. 2d 878, 888 (W.D. Va. 2001). These same technological
facilities were recognized by the Supreme Court as constitutionally
valid means to regulate pornographic Internet materials. See Ashcroft
v. ACLU, 535 U.S. 564, 583 & n.14 (2002) (stating that the Child
Online Protection Act does not banish from the Internet material
deemed harmful to minors because "[i]t only requires that such mate-
rial be placed behind adult identification screens"). In view of these
technological developments, Virginia argues:

    In the world of web-based pornography, "electronic screens"
    requiring credit card or age verification devices are com-
    monplace. So, too, are "teasers," hardcore pornography stra-
    tegically placed in front of such screens. All commercial
    pornographers need to do to abide by Virginia law is to
    move these pre-existing "screens" so that such screens
    appear before pornographic teasers are displayed.

This is a very modest and technologically feasible requirement that
will restrict pornographic materials to adult zones. Just as the Virginia
statute had already been upheld for constitutionality when argued
from the point of view of a bookseller, who was impliedly required
to undertake minimally burdensome steps to deny juveniles access to
harmful materials while preserving access for adults, see Am. Book-
sellers, 882 F.2d at 127-28, a facial review now leads to the same
conclusion when argued from the point of view of a seller from an
Internet website.

   To reach its conclusion that Virginia’s statute violates the First
Amendment, the panel majority relies on propositions that are unsup-
ported by the record or that are irrelevant to a determination of the
scope of the statute. For example, the majority says that "Internet
speakers have no way of preventing Virginia juveniles from accessing
their Internet speech." PSINet, Inc. v. Chapman, 362 F.3d 227, 235
(4th Cir. 2004). Yet, as has been pointed out, Virginia demonstrated
and the district court accepted the fact that commercial websites dis-
tributing pornography are using available technology effectively to
create adult zones that regulate access to their material.
                       PSINET, INC. v. CHAPMAN                         5
   The majority also says that § 18.2-391’s "attempt to deny minors
access to potentially harmful speech . . . will ‘effectively suppress[ ]
a large amount of speech that adults have a constitutional right to
receive and to address to one another.’" 362 F.3d at 235. Yet, there
is no evidence in the record that the Virginia statute will operate to
suppress any speech among adults. Both Virginia and the district
court recognized that, under the statute, adults will always have
access to commercially provided pornographic materials. The only
question that arose was whether the mechanisms for restricting access
to adults were too burdensome. But, just as adults who seek access
to adult magazines and books must enter a bookstore and demonstrate
their age to the bookseller, Virginia has demonstrated that adults
seeking pornography from commercial purveyors on the Internet may
enter an adult zone through use of credit cards, PINs, or other demon-
strated technological gateways and thereby gain access to adult mate-
rial. Notably, the statute does not reach non-commercial exchanges
such as occur in e-mail or chat-rooms.

   In response to the method for creating adult zones on the Internet,
the panel majority states that "many adults may be unwilling to pro-
vide their credit card number online, and would therefore not visit the
site. Such a restriction would also serve as a complete block to adults
who wish to access adult material but do not own a credit card." 362
F.3d at 236-37. But so too are many adults unwilling to enter an adult
bookstore and ask for material protected from juveniles. Yet, we have
already held in American Booksellers that the Virginia statute impos-
ing these minimal burdens on adults appropriately serves the compel-
ling state interest of protecting juveniles from pornography and
therefore is constitutional against a First Amendment challenge.

   On the Commerce Clause issue, the panel majority’s holding is
unprecedented. The panel majority concludes essentially that the
Commonwealth of Virginia may not regulate the Internet in any
respect because "the nature of the Internet itself makes the Common-
wealth’s proposed construction nearly impossible." 362 F.3d at 240.
It concludes that any regulation of the Internet by a state involves reg-
ulation far beyond the state’s reach and therefore cannot be upheld
under the Commerce Clause. This, however, is contrary to the
Supreme Court’s jurisprudence as represented by Oregon Waste Sys-
tems, Inc. v. Department of Environmental Quality of Oregon, 511
6                      PSINET, INC. v. CHAPMAN
U.S. 93, 99 (1994), and Pike v. Bruce Church, Inc., 397 U.S. 137, 142
(1970).

   Virginia is justifiably concerned with the open and unrestricted dis-
play to juveniles of pornographic materials harmful to them, and it
concededly has a compelling interest in imposing restrictions on the
display of those materials. The 1985 version of § 18.2-391, as well as
the 1999 amendment, imposes restrictions only on the display of such
materials for commercial purposes, and this limitation, coupled with
existing technology, does not deny adults any constitutionally pro-
tected speech. See Ginsberg, 390 U.S. at 638 & n.6. Moreover, the
Virginia Supreme Court has construed Virginia’s regulation narrowly,
directing only that commercial purveyors may not knowingly display
such materials to juveniles and that, if they are aware that such juve-
niles are perusing such materials, they must take reasonable steps to
prevent the perusal. See Commonwealth v. Am. Booksellers Ass’n,
Inc., 372 S.E.2d 618, 625 (Va. 1988).

   For Virginia, this case is, when left unreviewed, a procedural injus-
tice worked by the rules of judicial assignments and by an otherwise
appropriate local rule for en banc review. It is also, in my judgment,
a substantive injustice for the people of Virginia, who have carefully
crafted legislation to regulate commercial pornography on the Internet
for the safety and well being of the juveniles in the Commonwealth
without denying such material to adults.

  Accordingly, I dissent from our inability to rehear this important
case en banc.
