Vice Squad
Monday, March 08, 2004
Obscenity Updates, Including COPA

Back in November, Vice Squad (guesting at Crescat Sententia) mentioned a couple in Dallas who had been convicted of three federal obscenity charges. The couple, who distributed rape porn from a website titled "The Rape Video Store," were sentenced last week to 33 months (for the husband) and 30 months (for the wife) in federal prison. The content of the videos was not available over the web; rather, the website advertised the videos, which were then mailed to people who placed orders. At the time of his arrest, the husband was a member (and 8-year veteran) of the Dallas Police Department.

In other obscenity news, the Child Online Protection Act (COPA) was back in the Supreme Court for arguments last week. This law makes it illegal for commercial websites to post indecent material that is construed to be harmful to children unless it is placed behind some sort of filter to keep kids out. The law has a long history, being the progeny of the Communications Decency Act (CDA) of 1996. The CDA was found to be unconstitutional by the Supreme Court, on the grounds that its content-based restrictions on speech were vague and overbroad.

Congress responded in 1998 to the invalidation of the CDA by passing COPA, which appropriated much of the language from the 1973 Miller v. California case that provides the framework for US obscenity law. (Here's an earlier post on Miller.) For instance, under COPA, the prohibited material, taken as a whole, must lack serious artistic, literary, scientific, or political value to minors, and “contemporary community standards” are to be employed by juries in determining whether material is harmful to minors. In addition, COPA applies only to communications for commercial purposes, which currently receive a lower level of First Amendment protection than some other types of communications, such as political speech. Further, unlike the CDA, which arguably applied to all Internet communications, including e-mail and chat room messages, COPA restricts itself to webpage communications. A preliminary injunction has so far prevented enforcement of COPA. A couple years ago the Third Circuit invalidated COPA on the grounds that the community standards provision was substantially overbroad for regulating Internet communications. (The fear was that given the borderless nature of the web, every community would be held to the standards of the most puritanical.) On May 13, 2002, the US Supreme Court disagreed with the Third Circuit, claiming that COPA’s reliance on community standards by itself did not meet the “overbroad” test that would render COPA unconstitutional on First Amendment grounds. The Supreme Court kept the injunction in place, however, while sending the case back to the Third Circuit for a thorough hearing on COPA’s constitutionality that would go beyond the “community standards” issue. In March, 2003, the Third Circuit again found COPA to be unconstitutional, for an array of reasons. For instance, according to the Third Circuit, the restrictions on speech contained in COPA are not narrowly tailored to achieve the government’s purpose of preventing harm to minors from exposure to indecent materials, nor does COPA employ the least restrictive means of achieving this purpose.

Whew. For reports on the oral arguments at the Supreme Court last week, from two divergent standpoints, see here (the Baptist Press) and here (Adult Video News).

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