Vice Squad
Wednesday, June 30, 2004
COPA Manana?

Ryan has already indicated that the big vice regulation story of yesterday was the Supreme Court decision in Ashcroft v. ACLU, which concerns the Child Online Protection Act (COPA). I have read the opinions and will soon have a bit to say, but I thought that I would start by providing a brief (OK, maybe not all that brief) roadmap of US Internet pornography jurisprudence.

First, let's start with general speech, not just the Internet version. The First Amendment to the US Constitution, of course, limits what measures can be taken regulating speech or expression. The Supreme Court distinguishes between obscene material and indecent material. Obscene material has no First Amendment protection, while indecent sexual material does. What is considered to be obscene? A 1973 case, Miller v. California, provides the current standard. Paraphrasing somewhat, a work is obscene if (1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a prurient interest in sex; (2) the work depicts or describes sexual conduct in a patently offensive manner; and, (3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Possession of obscene material in your own home is protected, though transportation, distribution, and receipt can be controlled. (Here might be a good place to point out that I am not a lawyer and I could be wrong: do not rely upon any of the information or misinformation contained in this post or on the rest of Vice Squad, for that matter.) Possession of child pornography, even in one's home, is forbidden. (Incidentally, according to the relevant definition from OED online , "prurient" means "Given to the indulgence of lewd ideas; impure-minded; characterized by lasciviousness of thought or mind." There are some judicial attempts at spelling out what is meant by prurient, too.)

Constitutional protection of indecent material depends on the medium by which it is conveyed. Unseemly (though not necessarily legally obscene) matter can be regulated if it is transmitted via traditional broadcasting, as Howard Stern knows all too well. The Communications Decency Act (CDA: Title V of the Telecommunications Act of 1996) was aimed at extending this regulatory power over the transmission of indecent material to the Internet, for the purpose of preventing minors from procuring lewd material online. In ACLU v. Reno, the Supreme Court, in a 7-2 decision, found the content-based restrictions of the CDA on speech vague and overbroad, and part of the Act, therefore, unconstitutional on First Amendment grounds. The Court thought that the CDA would chill protected speech on the Internet. For example, a community organization's web-based discussion of safer sex using street slang to reach teens would violate the CDA.

Congress responded to the invalidation of the CDA by passing the Child Online Protection Act (COPA), which appropriated much of the language from the Miller case. For instance, under COPA, the targeted material, taken as a whole, must lack serious artistic, literary, scientific, or political value "for minors," and "contemporary community standards" are to be employed by juries in determining whether material is harmful to minors. By following closely the Miller formulation, Congress was trying to prevent the COPA ban from being overly (unconstitutionally) broad. Nevertheless, each of the three prongs of the Miller test was modified in COPA's language through a reference to minors, so COPA applies to at least some material that is not legally obscene. In addition, COPA (unlike the CDA) pertains only to communications intended for commercial purposes, which currently receive a lower level of First Amendment protection than some other types of communications, such as political speech. Further, again unlike the CDA, which arguably applied to all Internet communications, including e-mail and chat room messages, COPA restricts itself to webpage communications. COPA does not seek to ban "harmful to minors" material; rather, it requires that commercial porn purveyors place their material behind some sort of age check or credit card screen.

A preliminary injunction by a District Court prevented enforcement of COPA, based on the notion that the plaintiffs opposed to COPA would be likely to prevail on their argument that less restrictive alternatives to the COPA control were available. Subsequent appellate and Supreme Court litigation has been concerned with the appropriateness of this District Court grant of a preliminary injunction. The Third Circuit Court of Appeals initially upheld the injunction but on different grounds, ruling that the community standards provision was overbroad for regulating Internet communications. (One fear was that given the borderless nature of the web, every community would be held to the standards of the most puritanical.) In May, 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. It was an appeal of this (second) Third Circuit decision that was decided yesterday by the Supreme Court.

I'll save further COPA comment for future posts, but there are two other Internet vice verdicts worthy of note. The Child Pornography Prevention Act (CPPA), an amendment to earlier legislation, outlawed the possession of computer-generated or virtual child pornography, i.e., images that were created without the use of real children. On April 16, 2002, the US Supreme Court struck down CPPA, on the grounds that the Constitutionally-valid rationale permitting a ban on "real" child porn – harm to actual children – does not directly apply to virtual child porn.

Finally, Congress passed the Children's Internet Protection Act (CIPA) in December 2000, which seeks to force libraries that receive federal funds to install Internet filters. A trial began in late March, 2002, challenging the constitutionality of this law; among the plaintiffs were two candidates for Congress whose websites were blocked by filtering software. The US District Court in Philadelphia found CIPA to be unconstitutional, but last summer, the Supreme Court disagreed. I'll post more on CIPA later today, as it has some relevance for the COPA case -- apologies for the extensive, confusing abbreviations!

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