statute “was directed at unlawful conduct having nothing to do with books or other expressive
activity.”246 The fact that the proprietors were also selling books in “an establishment used for
prostitution does not confer First Amendment coverage to defeat a valid statute aimed at
penalizing and terminating illegal uses of premises.”247 Indeed, the Court found that “the
legislature properly sought to protect the environment of the community by directing the sanction
at premises knowingly used for lawless activities.”248 Just as this proprietor’s legal bookselling
did not cloak his illegal activities, an ISP’s legal goods and services for sale do not provide
immunity for the illegal activities that occur alongside them.
iii. IPACT is not unconstitutionally vague
The regulations in IPACT are not unconstitutionally vague. First, as noted above, the
proposal regulates the time, place and manner of the speech, but not its content. The content of
the posting remains unchanged, it is merely the manner in which it is posted that is regulated.
Further, the definitions contained in the IPACT amendment249 are clear and have long been tested
through federal litigation.
Statutes regulating speech may be found to be void for vagueness when a reasonable
person could not tell what expression or speech is being regulated.250 The Supreme Court has
ruled that “standards of permissible statutory vagueness are strict in the area of free expression . .
. [b]ecause First Amendment freedoms need breathing space to survive, government may regulate
in the area only with narrow specificity.”251 This is particularly true if it involves a criminal
statute, because the stigma of a criminal conviction could influence the speaker.252 Thus, the
Court will carefully scrutinize the statute for unconstitutional vagueness if the statute is both
criminal and content-based.253 A critical focus of the vagueness doctrine is to prevent arbitrary
enforcement of the law—in this case the IPACT amendment—resulting from unclear
standards.254 However, “perfect clarity and precise guidance have never been required even of
regulations that restrict expressive activity.”255
Moreover, ISPs are only liable when they fail to follow the clear requirement that, before
an ad is posted on an adult services section, the ISP must verify the identity and age through E-Verify or a similar alternative of each of the players—the person seeking to view the ad, the
person posting the ad, and the individual depicted in the ad—and confirm they are thus legally
eligible to utilize the adult services section. It will be clear which ads must be scrutinized:256 ISPs
must evaluate every adult services ad to determine that it does not involve illegal activity. This
regulation is therefore not unconstitutionally vague because it provides fair notice of what
constitutes a violation, and thereby does not allow for arbitrary enforcement.
249 See supra text accompanying note 204.
250 See, e.g., Coates v. City of Cincinnati, 402 U.S. 611, 613 (1971).
251 Nat’l Ass’n for Advancement of Colored People v. Button, 371 U.S. 415, 432-33 (1963).
252 See, e.g., Reno v. Am. Civil Liberties Union, 521 U.S. 844, 872 (1997).
253 See, e.g., Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 499 (1982).
254 See supra note 251 and accompanying text.
255 United States v. Williams, 553 U.S. 285, 304 (2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)); see also
Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2720 (2010) (explaining that a federal criminal statute’s terms making it a
federal crime to “knowingly provide material support or resources to a foreign terrorist organization” were “clear in their application
to plaintiffs’ proposed conduct” even assuming a “heightened standard applies because the material-support statute potentially
implicates speech” and not void for vagueness).
256 See text accompanying note 199 (explaining that if the photograph presented for age verification does not match the photograph
proposed for the posting, E-Verify will issue a “Tentative Nonconfirmation (TNC)” result).