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By David L. Hudson Jr.
First Amendment scholar

Pornography on the Internet has become a lightning rod for legislation, lawsuits and fierce public debate. State and federal legislators have passed politically popular laws designed to protect children from online smut. Supporters insist that the laws are necessary to protect minors from an online red-light district.

Civil liberties groups have opposed the measures, claiming that they threaten freedom of speech. They argue that the online “sanitation” laws should not sacrifice adult free-speech rights and the rights of older minors. Continuing litigation that has now spanned nearly a decade over a federal law known as the Child Online Protection Act — COPA — could affect the future of Internet speech regulation. So far, the federal courts have invalidated Congress’ attempts at criminalizing such speech on the Internet.

Communications Decency Act
The free-speech battle on the Internet did not begin with COPA. Instead, it began in 1996 with the hasty passage of the Communications Decency Act — or CDA. Two provisions of CDA prohibited online transmission or display of “indecent” and “patently offensive” communications.

The law did not define the terms “indecent” or “patently offensive.” The American Civil Liberties Union and other groups persuaded a panel of three federal judges in Philadelphia to strike the two provisions. That ruling was later affirmed by the U.S. Supreme Court in its June 1997 decision Reno v. ACLU.

Writing for the Court, Justice John Paul Stevens noted that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”

The Supreme Court also ruled that the language of the provisions created too much uncertainty about what types of speech could be prohibited. The court questioned whether serious discussions about birth control, homosexuality, prison rape, and even First Amendment issues in prior decisions would violate the statute.

“The breadth of the CDA’s coverage is wholly unprecedented,” Stevens wrote. “The general, undefined terms ‘indecent’ and ‘patently offensive’ cover large amounts of nonpornographic material with serious educational or other value.”

Child Online Protection Act
Immediately after the Court’s decision, Congress went to work to craft another federal law that would address some of the Court’s concerns. The result was the Child Online Protection Act, which Congress passed in October 1998.

COPA criminalizes the making of "any communication for commercial purposes" that is distributed via the World Wide Web and is "harmful to minors." Penalties include a six-month imprisonment and $50,000 fine for each violation.

In several respects, COPA is more narrowly drafted than its predecessor. For example, COPA applies to communications on the World Wide Web, rather than the Internet as a whole. COPA purports to target only commercial pornographers. Finally, COPA criminalizes only material that is "harmful to minors," unlike the CDA, which criminalized "indecent" material.

The day after COPA was signed into law, the ACLU and 16 other organizations ranging from an online distributor of condoms to a gay and lesbian online bookstore challenged it on First Amendment grounds.

In February 1999, a federal judge in Philadelphia issued a preliminary injunction preventing enforcement of COPA pending the outcome of a full trial. He reasoned that voluntary use of filtering or blocking software could well be a less-restrictive alternative to this broad law and its stiff fines and prison terms.

“Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection," wrote the federal judge.

The government appealed to the 3rd U.S. Circuit Court of Appeals. The 3rd Circuit panel also prevented enforcement of the law — though it did so on different grounds in June 2000. The appeals panel said that COPA's definition of “harmful to minors” — with a “contemporary community standards” clause — could not be applied in cyberspace.

The panel wrote: “The overbreadth of COPA's definition of 'harmful to minors' applying a 'contemporary community standards' clause — although virtually ignored by the parties and the amicus in their respective briefs but raised by us at oral argument — so concerns us that we are persuaded that this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute.”

The appeals panel focused on the fact that “Web publishers cannot restrict access to their site based on the geographic locale of the Internet user of the site.” As a result, the court reasoned, Web publishers must ensure that their sites comply with the standards of the most stringent community.

The government argued that traditional obscenity law provides that defendants could be held liable based on community standards as outlined in the 1973 decision Miller v. California. But, the panel was not persuaded, finding that “Miller … has no applicability to the Internet and the Web, where Web publishers are currently without the ability to control the geographic scope of the recipients of their communications.”

Supreme Court decision
The government appealed the 3rd Circuit’s decision to the Supreme Court in Ashcroft v. ACLU. On May 13, 2002, the high court ruled that the 3rd Circuit had acted too quickly in dismissing COPA solely on the community-standards rationale.

The Court ruled 8-1 to send the case back to the 3rd Circuit for further constitutional review. Justice Clarence Thomas wrote that the Court’s obscenity cases establish that publishers must conform to different community standards.

“If a publisher chooses to send its material into a particular community, this Court’s jurisprudence teaches that it is the publisher’s responsibility to abide by that community’s standards,” Thomas wrote. “The publisher’s burden does not change simply because it decides to distribute its material to every community in the Nation.”

Thomas also pointed out that striking down COPA because of its use of community standards would spell doom for federal obscenity statutes as applied online. Thomas emphasized that the Court’s opinion was “quite limited.”

He reasoned that “prudence dictates allowing the Court of Appeals to first examine these difficult issues.”

Other justices wrote separately to stress their difficulty with applying local standards to the Internet. Justice Sandra Day O’Connor wrote that “adoption of a national standard is necessary in my view for any reasonable regulation of Internet obscenity.”

In a similar vein, Justice Stephen Breyer wrote: “To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s veto affecting the rest of the Nation.”

Only the author of the Court’s decision in Reno v. ACLU, Justice John Paul Stevens, dissented. “It is quite wrong to allow the standards of a minority consisting of the least tolerant communities to regulate access to relatively harmless messages in this burgeoning market,” he wrote.

On remand
After the Supreme Court decision, the parties again filed legal papers and argued before the 3rd Circuit. On March 6, 2003, the three-judge panel of the 3rd Circuit again affirmed the district court judge’s granting of a preliminary injunction, preventing the government from enforcing COPA. In its opinion, ACLU v. Ashcroft (No. 99-1324), the appeals court determined that COPA was not narrowly tailored enough in several aspects to survive First Amendment review.

The panel focused on the definition of “harmful to minors” in COPA, which describes such material as “any communication, picture, image, file, article, recording, writing, or other matter of any kind” that satisfies the prurient-interest, patently offensive and serious-value prongs of the harmful-to-minors standard.

The problem with this definition, according to the panel, is that one sexual image could be considered harmful to minors even “if it were to be viewed in the context of an entire collection of Renaissance artwork.”

The panel also found constitutional flaws in the fact that the statute did not distinguish between different age levels of minors. “Regardless of what the lower end of the range of relevant minors is, Web publishers would face great uncertainty in deciding what minor could be exposed to its publication, so that a publisher could predict, and guard against, potential liability,” the panel wrote.

The appeals court also determined that COPA’s definition of “commercial purposes” was too broad, applying to far more than commercial pornographers. “We are satisfied that COPA is not narrowly tailored to proscribe commercial pornographers and their ilk, as the Government contends, but instead prohibits a wide range of protected expression,” the panel wrote.

The panel also wrote that the voluntary use of filtering software by parents was a less speech-restrictive alternative than the broad criminal penalties imposed by COPA.

In addition, the panel found that COPA “is substantially overbroad in that it places significant burdens on Web publishers’ communication of speech that is constitutionally protected as to adults and adults’ ability to access such speech.”

Supreme Court and COPA — for the 2nd time
The Justice Department appealed the decision to the U.S. Supreme Court, which again agreed to review COPA. On June 29, 2004, the Court ruled 5-4 that the district court did not err in blocking enforcement of COPA pending a full trial on the merits of the First Amendment challenges.

Writing for the majority in Ashcroft v. ACLU II, Justice Anthony Kennedy wrote that the district court reasonably could conclude that blocking and filtering technology were a less speech-restrictive alternative than COPA, a criminal statute.

“Filters are less restrictive than COPA,” Kennedy wrote. “They impose selective restrictions on speech at the receiving end, not universal restrictions at the source.”

Kennedy also pointed out that filters could be more effective in shielding minors from pornography, because filters can block harmful material from anywhere, while COPA applies only to commercial pornographers based in the United States.

Leaving the injunction in place pending a trial, Kennedy observed, would discourage self-censorship by Web-site owners. “Where a prosecution is a likely possibility, yet only an affirmative defense is available, speakers may self-censor rather than risk the perils of trial,” he wrote. “There is a potential for extraordinary harm and a serious chill upon protected speech.”

The ACLU saw the Court’s second decision on COPA as a victory for freedom of speech. "Today’s ruling from the Court demonstrates that there are many less restrictive ways to protect children without sacrificing communication intended for adults," said ACLU Associate Legal Director Ann Beeson in a news release. Beeson argued the case before the justices in March 2002 and earlier in 2001.

“By preventing Attorney General (John) Ashcroft from enforcing this questionable federal law, the Court has made it safe for artists, sex educators, and web publishers to communicate with adults about sexuality without risking jail time," Beeson added.

COPA litigation continues in lower courts
The case went back down to the federal district court, where the judge held a bench trial (trial before a judge, not a jury) on the merits of COPA. Senior U.S. District Judge Lowell Reed Jr. issued an 84-page opinion on March 22, 2007, in ACLU v. Gonzales that struck down the law. He concluded that the law violated the First Amendment because the government failed to show that COPA, clearly a content-based law, is narrowly drawn enough to satisfy strict scrutiny — the highest form of judicial review. Strict scrutiny requires the government to prove it has a compelling interest for the law at issue. Reed noted that filters were a less speech-restrictive alternative than COPA. Reed also determined that COPA was too broad and vague.

The government once again appealed to the 3rd Circuit, which heard oral arguments in June 2008. On July 22, 2008, a three-judge panel of the 3rd Circuit ruled in ACLU v. Mukasey that COPA violates the First Amendment. “In sum, COPA cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconstitutional,” the appeals court panel concluded.

"For years the government has been trying to thwart freedom of speech on the Internet, and for years the courts have been finding the attempts unconstitutional," said Chris Hansen, senior staff attorney with the ACLU First Amendment Working Group, in a news release. "The government has no more right to censor the Internet than it does books and magazines."

Updated August 2008

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