U.S. Supreme Court to Review Internet Porn Law

In deciding to review the constitutionality of the Child Online Protection Act, the U.S. Supreme Court will revisit Congress' efforts to protect children from Internet pornography. The Third Circuit has ruled thus far that the Child Online Protection Act (COPA) is “overbroad” and “puritanical” in the case of Ashcroft v. American Civil Liberties Union, No. 02-218, cert. granted (U.S. Oct. 14, 2003).

Congress' first crack at shielding minors from Internet pornography, the Communications Decency Act, was struck down by the U.S. Supreme Court in 1996.

Just as soon as former President Bill Clinton signed COPA into law on Oct. 22, 1998, the American Civil Liberties Union filed suit in Philadelphia federal court challenging its constitutionality.

Under COPA, offending material was limited to commercially published pornography on the Internet, and a three-part test was established to determine whether or not the material was “harmful to minors.” Each element of the test must be met before liability can attach:

• Whether the average person, applying “contemporary community standards,” would find, taking the material as a whole and with respect to minors, that it is designed to appeal to, or is designed to pander to, the prurient interest;
• Whether the material depicts, describes or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
• Whether, taken as a whole, the material lacks serious literary, artistic, political or scientific value for minors.

The ACLU argued successfully that attempts to cure the Communications Decency Act's shortcomings had failed and that COPA infringed the First Amendment rights of adults. But, after the Third Circuit affirmed an injunction against the law, the U.S. Supreme Court agreed to hear the government's appeal.

In May 2002, the High Court vacated the Third Circuit's ruling and remanded for further proceedings to determine whether COPA's reliance on “community standards” renders the statute unconstitutional. The high court, however, did not lift the injunction. Ashcroft v. ACLU et al., No. 00-1293 (U.S. May 13, 2002).

On remand, the Third Circuit rejected the Supreme Court's reasoning in asserting that COPA was not narrowly tailored to protect minors and infringed on the rights of adults. The definition of “harmful to minors” was so overbroad that it could mean any age group from toddlers to 17-year-olds, the Court reasoned; sex education, for example, might be acceptable for a 16-year-old but inappropriate for a 10-year-old.

Also, the term “for commercial purposes” encompassed too many different kinds of Web publishers, the court wrote. It added that the use of adult verification identifying criteria was an outright First Amendment violation, and that parents could easily block offensive material by using filter systems on their home computers.

The Court further wrote that using “contemporary community standards” to determine offensive Internet material violates the First Amendment because it effectively limits permissible material under the statute to that which is acceptable in only the most conservative areas.

The government again applied for certiorari review and asked the U.S. Supreme Court to review the Third Circuit's decision. The government compared COPA to laws that require stores to display sexually explicit material behind screens or in opaque covers, and to demand proof of age from anyone attempting to purchase such materials. Such restrictions, the government argued, have repeatedly been upheld by federal trial and appellate courts and by the U.S. Supreme Court.

The government claimed that the Constitution allows for some burden to be placed on adults who wish to access material that is protected for them but not for minors, citing the U.S. Supreme Court's ruling in United States v. American Library Association, No. 02-361 (U.S., June 23, 2003), in which the court wrote, “The Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.”

The Third Circuit found blocking software to afford a less restrictive means to achieve the goal of protecting minors from pornography, while the government contended that blocking software alone cannot do the job. Such software can be a valuable tool, especially in blocking out material that COPA does not or cannot reach, such as material on foreign Web sites, the government argued. But the software can block access to sites with no harmful content while failing to block sites with harmful content, and it cannot protect children who are using unfiltered computers, the government reasoned.

In deciding to review the constitutionality of the Child Online Protection Act, the U.S. Supreme Court will revisit Congress' efforts to protect children from Internet pornography. The Third Circuit has ruled thus far that the Child Online Protection Act (COPA) is “overbroad” and “puritanical” in the case of Ashcroft v. American Civil Liberties Union, No. 02-218, cert. granted (U.S. Oct. 14, 2003).

Congress' first crack at shielding minors from Internet pornography, the Communications Decency Act, was struck down by the U.S. Supreme Court in 1996.

Just as soon as former President Bill Clinton signed COPA into law on Oct. 22, 1998, the American Civil Liberties Union filed suit in Philadelphia federal court challenging its constitutionality.

Under COPA, offending material was limited to commercially published pornography on the Internet, and a three-part test was established to determine whether or not the material was “harmful to minors.” Each element of the test must be met before liability can attach:

• Whether the average person, applying “contemporary community standards,” would find, taking the material as a whole and with respect to minors, that it is designed to appeal to, or is designed to pander to, the prurient interest;
• Whether the material depicts, describes or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
• Whether, taken as a whole, the material lacks serious literary, artistic, political or scientific value for minors.

The ACLU argued successfully that attempts to cure the Communications Decency Act's shortcomings had failed and that COPA infringed the First Amendment rights of adults. But, after the Third Circuit affirmed an injunction against the law, the U.S. Supreme Court agreed to hear the government's appeal.

In May 2002, the High Court vacated the Third Circuit's ruling and remanded for further proceedings to determine whether COPA's reliance on “community standards” renders the statute unconstitutional. The high court, however, did not lift the injunction. Ashcroft v. ACLU et al., No. 00-1293 (U.S. May 13, 2002).

On remand, the Third Circuit rejected the Supreme Court's reasoning in asserting that COPA was not narrowly tailored to protect minors and infringed on the rights of adults. The definition of “harmful to minors” was so overbroad that it could mean any age group from toddlers to 17-year-olds, the Court reasoned; sex education, for example, might be acceptable for a 16-year-old but inappropriate for a 10-year-old.

Also, the term “for commercial purposes” encompassed too many different kinds of Web publishers, the court wrote. It added that the use of adult verification identifying criteria was an outright First Amendment violation, and that parents could easily block offensive material by using filter systems on their home computers.

The Court further wrote that using “contemporary community standards” to determine offensive Internet material violates the First Amendment because it effectively limits permissible material under the statute to that which is acceptable in only the most conservative areas.

The government again applied for certiorari review and asked the U.S. Supreme Court to review the Third Circuit's decision. The government compared COPA to laws that require stores to display sexually explicit material behind screens or in opaque covers, and to demand proof of age from anyone attempting to purchase such materials. Such restrictions, the government argued, have repeatedly been upheld by federal trial and appellate courts and by the U.S. Supreme Court.

The government claimed that the Constitution allows for some burden to be placed on adults who wish to access material that is protected for them but not for minors, citing the U.S. Supreme Court's ruling in United States v. American Library Association, No. 02-361 (U.S., June 23, 2003), in which the court wrote, “The Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.”

The Third Circuit found blocking software to afford a less restrictive means to achieve the goal of protecting minors from pornography, while the government contended that blocking software alone cannot do the job. Such software can be a valuable tool, especially in blocking out material that COPA does not or cannot reach, such as material on foreign Web sites, the government argued. But the software can block access to sites with no harmful content while failing to block sites with harmful content, and it cannot protect children who are using unfiltered computers, the government reasoned.