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Wednesday, Nov. 28, 2001

The United States Supreme Court hears oral argument today in Ashcroft v. ACLU. The case pits the free speech rights of adults in accessing sexually explicit but non-obscene materials against the government's interest in shielding minors from those same materials.

Recent precedents indicate that the Court will probably strike down the challenged provisions of the Child Online Protection Act (COPA). However, the relevant precedents predate September 11. We have yet to see how the Justices view claims to unfettered Internet free speech and privacy in the age of terrorism - and a changed view might affect the outcome of the case.

The Basic Law on Obscenity and Minors

Long before Al Gore invented the Internet, Congress and the states attempted to regulate sexually explicit materials in the physical world. These regulatory efforts sometimes ran afoul of the First Amendment, and the Supreme Court's precedents in cases involving pornography set the framework for the legal debate over COPA and its predecessor legislation.

To begin, obscene speech can be constitutionally prohibited, according to the Court's landmark 1973 decision in Miller v. California, which set forth the test as to what speech may be constitutionally deemed obscene.

The test for what counts as obscene under Miller includes consideration of the local community that is the audience for the speech. The standard for New York City, for example, will be different from that of a more conservative rural community.

Moreover, where minors' access to sexual materials is concerned, a special, lower obscenity standard can be applied, as the Court held in the 1968 case of Ginsberg v. New York. This special, lower standard can only be applied to minors, however. Efforts to restrict minors' access to sexual material are unconstitutional if those efforts unduly burden the rights of adults.

The CDA: Congress's First Effort to Protect Children From Online Porn

Given this legal framework, the unconstitutionality of COPA's predecessor statute, the Communications Decency Act (CDA), passed in 1996, was fairly clear.

The CDA banned transmission over the Internet of "obscene," "indecent," and "patently offensive" material to anyone under the age of 18. The Court held in 1997, in Reno v. ACLU, that pursuant to Miller, the ban on "obscene" material was acceptable, just as it would be offline. In contrast, however, the companion bans on "indecent" and "patently offensive" material were both too sweeping and too imprecise to pass constitutional muster.

The Court also held that the CDA impermissibly applied to adults a standard that was only appropriate for children. The Justices quoted the 1983 case of Bolger v. Youngs Drug Products Corp., for the proposition that "the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." The same goes for an email box or chat room, the Court concluded.

Congress Goes Back to the Drawing Board and Enacts COPA

After the Court invalidated the CDA, Congress tried to craft a narrower statute. The result was COPA. The government argues that COPA is different from the CDA in several significant ways. Together, the government contends, these differences mean that COPA should not share the CDA's fate.

The first difference is that in place of the CDA's terms "indecent" and "patently offensive," COPA drew on the Ginsberg case to substitute the term "harmful to minors," which the Act defines as, essentially, obscene for a minor even if not for an adult.

A second difference is that whereas the CDA applied to the entire Internet - email, chat rooms, bulletin boards, and the World Wide Web - COPA applies only to the Web. In addition, it expressly excludes passive conduits like Internet Service Providers from its coverage.

These limitations and exclusions are significant because unlike an Internet Service Provider or bulletin board host who must cope with a enormous number of postings in real time, a website can feasibly pre-screen its posted content - ensuring that minors do not see certain content, and that the content they do see is not "harmful to minors." Thus, the government contends, websites can create a partition between adult and other content, and ensure with age screening that minors stick to the cybersandbox.

There are further differences between COPA and the CDA. For example unlike the CDA, COPA only applies to communications for "commercial purposes." In addition, COPA defines minors as children under the age of seventeen rather than eighteen, so as to exempt nearly all college students.

The Court of Appeals Decision: Applying Local Community Standards Nationally

Despite the differences between COPA and the CDA, the lower courts found COPA unconstitutional. The district court ruled that the technologically feasible methods of age screening would pose too great a burden on the rights of adults to access sexually explicit material on the Web. Such material, the district court found, consists of more than just soft-core pornography, including "resources on obstetrics, gynecology, and sexual health; visual art and poetry; resources designed for gays and lesbians" and so forth.

The Third Circuit Court of Appeals affirmed, but on a new rationale that was not considered by the parties or the district court. It focused on COPA's definition of "harmful to minors," which invokes "contemporary community standards."

That definition attempts to comply with precedent by tracking both Ginsberg, which allows a lower obscenity standard for minors, and Miller. (Although it was decided in the context of what is obscene for adults, not minors, Miller seems to suggest that all obscenity standards, to be constitutional, must be local and community-based, rather than national.) But interestingly, the Third Circuit thought that combining the two precedents in this way, and applying them to the Internet, led to an unconstitutional result.

Using a "community standards" test, the Court of Appeals found, makes sense in the physical world. A seller of sexually explicit magazines or CDs, for example, can avoid sales in communities that would deem them obscene (either in general, or with respect to minors).

However, as its name suggests, the World Wide Web knows no geographic boundaries. There is no technologically feasible way for a website operator to restrict access based on the physical location of the user.

Thus, the requirement that the harmful-to-minors test be based on community standards effectively means that all material will be judged by the standards of the most restrictive community in the country. The material a minor in New York City can access will be as restricted as that which a minor in a far more conservative rural community can see - and that, the Third Circuit reasoned, violates Miller.

Can Obscenity Law Ever Apply to the Web Under Miller?

The government argues, in its brief to the Supreme Court, that the Third Circuit's reasoning has a disastrous consequence: There can be no obscenity law at all applicable to the Web - regardless of whether the speech at issue has an audience of adults, minors, or both.

The argument goes like this: If, according to Miller, the most restrictive community standards cannot constitutionally win out where obscene material is concerned, then the least restrictive standards - or no standards at all - will. If a rural area cannot set tastes in New York, then New York will, by default, set tastes for the rural area by imposing its lax standards for sexual material on the Internet.

It is unclear how the Supreme Court will resolve this community standards question. In Reno v. ACLU, the high Court worried that the "community standards criterion as applied to the Internet means that any communication available to a nation-wide audience will be judged by the standards of the community most likely to be offended by the message" - so the Justices are certainly aware of the Third Circuit's argument, and, to some extent, share its concern.

At the same time, however, the Court in Reno v. ACLU left standing the provision of the CDA that banned obscene communications, even though that provision also incorporated community standards. Whether the Court thought this provision constitutional, or simply wanted to leave to another day the question of its constitutionality, is not obvious.

The Key Questions in the Current Case

Ultimately, the Court's resolution of Ashcroft v. ACLU may turn on two issues.

The first key issue is technological. The district court found that user-based blocking programs such as Net Nanny and Cyber Patrol, or the built-in filtering features of browsers such as Internet Explorer and Netscape Communicator, are preferable to the restrictions of COPA because they are at least as effective but less intrusive. The government, however, contests this view - appealing in part to the commonly held belief that computer-savvy adolescents will usually be able to circumvent any blocking measures their luddite parents attempt to employ.

The second key issue is more theoretical: What counts as a restriction on speech? The CDA made it impossible for adults to receive sexually explicit material because it required technologically infeasible age-verification measures. But because COPA applies only to websites, age-verification is feasible for those COPA affects.

Content providers can verify age either by requiring users to provide a credit card number or an adult access code obtainable for a fee. Thus, the government argues, any adult who wishes to receive non-obscene sexually explicit material over the Web can do so.

The plaintiffs counter that the requirement of age verification is still unconstitutional, because it imposes substantial burdens on speech. It denies access to web surfers without credit cards. It imposes administrative difficulties on websites that contain only a small amount of harmful-to-minors content. It imposes financial burdens. And it sacrifices the privacy of would-be web surfers.

Recent precedents suggest that the Court will be receptive to these objections. In Reno v. ACLU itself, the Court found the same age verification options inadequate. COPA's narrower coverage ameliorates but does not eliminate the Court's concerns with the CDA.

Moreover, in the 2000 case of United States v. Playboy Entertainment Group, Inc.. the Court invalidated a federal requirement mandating that adult entertainment cable television channels restrict their content to late-night hours or fully scramble their signals. The majority found it significant that there was a less restrictive technologically feasible alternative: permitting customers to request that particular channels be blocked.

What the Court said in the Playboy case seems equally applicable to COPA: "Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us." Because parents can screen what their children see online, there is scant justification for the government trying to do the job for them.

The Impact of September 11th

Before September 11th, it seemed relatively clear that the Court would strike down COPA, but now it is less clear. In the wake of September 11th, the values asserted by the plaintiffs may seem less deserving of protection.

For instance, we now understand that the ability to use the Internet anonymously may carry with it substantial dangers. Measures such as a government-mandated sign-in system at Internet cafes seem less oppressive than they once did.

On the other hand, concerns about terrorism may actually undermine the argument for COPA. In this new era, the government's interest in protecting children from pornography seems almost trivial when contrasted with the interest in protecting children and adults alike from uses of the Internet that may pose an immediate threat to thousands of lives.

Neither of these reactions to September 11th is likely to be expressed by the Court in so many words. But the Justices, who had to be evacuated from the Supreme Court building because of anthrax-tainted mail, live in the same world as the rest of us. Thus, it is hard to imagine that concerns about terrorism will not enter their minds as they wrestle with the issues that are formally presented in Ashcroft v. ACLU.

Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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