The Supreme Court's New Decision on Children and Internet Porn:
How Two Contrasting Views of the First Amendment Split the Court

By JULIE HILDEN


julhil@aol.com
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Tuesday, Jul. 06, 2004

Last week, in Ashcroft v. ACLU, the Supreme Court issued a 5-4 decision relating to minors and the Internet. The decision addressed the constitutionality of the Child Online Protection Act (COPA).

COPA carves out a category of non-obscene materials that are targeted on the ground that they are deemed "harmful to minors." COPA imposes criminal penalties if such materials are posted on the Internet without measures (such as credit card verification) to ensure minors do not view them.

The Court held that COPA probably ought to be struck down on the grounds that it violates the First Amendment. As a result, the injunction that currently exists against the enforcement of COPA will continue, at least for now.

(Usually, Supreme Court decisions aren't qualified with a "likely" or a "probably." Marbury v. Madison famously said the Court's job is to "say what the law is" - not what it probably is. But in this case, the Court wasn't asked to decide if the law was constitutional; it was asked to decide if it was probably unconstitutional. Put another way, the Court was asked to decide if those challenging COPA were "likely" to prevail in their challenge - a factor that must be proven in order to maintain the injunction.)

This decision is fascinating for two reasons. First, it caused a weird split in the Court - drawing a line separating liberal from liberal, and conservative from conservative. Who would have expected that Attorney General Ashcroft would garner a liberal supporter, and the ACLU some staunch conservative supporters? But that is exactly what happened.

Second, each side of this division seems to believe that it is the one best honoring the First Amendment. That's unusual, because in many cases, one set of Justices stresses the First Amendment, and the other stresses the government interest at issue.

The Specifics Of COPA: What the Law Does

To understand this case requires, first, some explanation of a few of the specifics of COPA.

COPA imposes harsh criminal penalties - a $50,000 fine and six months in prison - on those who knowingly and for "commercial purposes" post on the Internet content that is "harmful to minors."

How is material that is "harmful to minors" defined? COPA begins with the traditional Miller v. California obscenity test, which I have explained in an earlier column. But it modifies the test so that each factor is considered "with respect to minors" - not with respect to adults. The idea - and it is one the Supreme Court has previously accepted, in cases such as Ginsberg v. New York - is that material that is not obscene as to adults, may still be legally deemed unfit for children to see.

COPA also creates a defense for those who are charged under the statute. A person will not be convicted if he or she has taken "reasonable measures" - such as credit card verification -- and "restricted access by minors" to the relevant material. The idea is that if the material shouldn't be seen by children, and the web poster makes reasonably sure it isn't seen by children, then there's no problem: No harm; no foul.

The Core Issue: Was the Statute the Least Speech-Restrictive Alternative?

With the sole exception of Justice Scalia, the Justices agreed that under the First Amendment, COPA ought to be subject to "strict scrutiny."

"Strict scrutiny" is the harshest kind of scrutiny a judge can apply to a law when he is assessing whether it is constitutional. To survive strict scrutiny - often deemed "strict in theory, fatal in fact" - a law must both serve a "compelling state interest," and be the "least restrictive alternative" Congress could have opted for.

The Justices agreed that protecting children from material deemed "harmful to minors" is a compelling interest. But they divided on whether COPA violated the First Amendment - because they divided on whether it was the "least restrictive alternative.

Here, that meant, roughly, that COPA had to be the legislative choice that harmed First Amendment rights the least. And some Justice thought that there were choices available that would have harmed speech less, and still accomplished Congress's goal of protecting children.

The Majority's View on the "Least Restrictive Alternative" Test

The majority Justices - Kennedy, Stevens, Souter, Thomas, and Ginsburg -- thought COPA was not the least restrictive alternative.

Instead of imposing harsh criminal penalties, they noted, Congress could have supported, promoted, and perhaps even funded, the use of blocking and filtering software. Such software could be used by parents to limit their children's Internet access. They saw COPA's harsh criminal penalties as far more restrictive than the easy home remedy of Congressionally sponsored parental filtering.

In my view, the majority's view is very persuasive: There is a world of difference between optional home content-filtering (such as the V-chip, designed to let parents control what their children see on television) and criminal prosecutions. And even without filters as an alternative, there would still be a less restrictive alternative to COPA: Modest civil monetary penalties, rather than potential huge fines and months of jail time.

This majority was a liberal-conservative coalition, and at least a somewhat surprising one. Granted, Justices Kennedy and Thomas have proven themselves strong First Amendment proponents before. This time, though, their First Amendment commitment was especially harshly tested - with the particularly troubling combination of sexual (rather than, say, political) speech, and worries about harm to young children.

The Dissenters' View: Filters Aren't A "Less Restrictive Alternative"

In contrast to the majority, the dissenting Justices believed that COPA was the least restrictive alternative Congress could have chosen.

Scalia wrote separately - arguing, in essence, that COPA was not much of a First Amendment violation in the first place. But Breyer wrote a much more pro-First Amendment dissent, which Rehnquist and O'Connor joined. Again, here, the coalition was liberal-conservative, but this time, it was very surprising. ( Typically, Breyer and Rehnquist are on opposite sides. )

Breyer and those who joined him were unimpressed with the "home filters" alternative. They reasoned that since the filters already exist, and are already used by some parents, they don't provide much of an alternative for a Congress that wants to do more - to improve things.

They also found fault with current filtering methods - which, as I discussed in a prior column, are far from perfect.

The Dissenters' View: COPA Doesn't Restrict Much Currently Legal Speech

In addition, Breyer, Rehnquist and O'Connor weren't convinced that COPA's penalties were as harsh on speech as they might seem. In other words, they weren't convinced COPA was so very restrictive of speech in the first place.

Again, COPA's tests are taken from the traditional Miller test to which COPA simply adds on the "with respect to minors" phrase.

Here is the Miller test: It must be the case that (1) "the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest"; (2) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and (3) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

And here's COPA's test: It must be the case that (1) "the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest"; (2) the work "depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast"; and (3) the work "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." (Emphases added.)

In sum, COPA simply incorporates the Miller test, and tacks on "with respect to minors" at each of its three steps. And both COPA and Miller require that all three steps be satisfied, if material is to be restricted.

Breyer opined that "one cannot easily imagine material that has significant literary, artistic, political or scientific value for a significant group of adults, but lacks such value for a significant group of minors."

Thus, in his view, COPA hardly goes beyond the pre-existing Miller test -- which has been the law for decades, and which the Court has long upheld. And therefore, there's hardly any First Amendment issue at all.

The Problem with the Dissenters' Argument: Many May Read COPA Broadly

In my view, though, the problem with this argument is that Justice Breyer is unduly optimistic in his estimation of how narrowly COPA would be interpreted to reach.

If all state and federal judges were as wise as Breyer, they might interpret COPA the way he does: To go only a tiny bit further than prior law, under Miller.

But many are not as wise - and this is an area where emotions run high. What is art to some, is often pornography to others. What is reluctantly conceded to be valuable to at least some adults (say, a book by Henry Miller or Anais Nin) may be seen as valueless to children..

Criminal prosecutions by aggressive COPA prosecutors -- based on much broader views of COPA than Breyer's -- would therefore be inevitable if COPA were allowed to stand. And some of these prosecutions will be brought before like-minded judges; will not be thrown out of court; and will result in convictions, by juries who feel as the prosecutors do.

Even one such conviction, to my mind, would be a terrible free speech harm. And it's important to remember that prosecutions, alone, can ruin lives and businesses, even if the verdicts are ultimately reversed.

Would an Alternative To COPA Be Even More Restrictive to Speech? Not Likely.

Finally, Breyer suggests in his dissent that, from a free speech point of view, COPA might be preferable to the alternative.

Why? Because, he explained, if COPA is struck down, he foresees a backlash that might seek to protect minors from Internet porn by extremely aggressive enforcement of the existing obscenity laws.

But if that's truly a problem, then the Court should reign in the scope of existing obscenity laws - rather than allow COPA to expand them.

In the end, the majority was right: There are far less speech-restrictive ways than the threat of jailtime for web posters, to protect children who are using the Internet. Filters are one of them. Blocking software is another. And civil penalties are a third.

We should save our criminal penalties for truly repellent material - such as child pornography. In cases like this one -- when the purported harm to children is psychological, and based on reading or seeing certain materials - the government should stay off the Internet.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She clerked for then-Judge Breyer when he was on the U.S. Court of Appeals for the First Circuit. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.

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