Oh No: One More Post on Ashcroft v. ACLU
- posted by Jim Leitzel @ 5:59 PM

Just wanted to bring the pain to a quick end by providing a guide to the four previous posts motivated by the Supreme Court's decision concerning the Child Online Protection Act (COPA) in Ashcroft v. ACLU et al.

First, there was this background post explaining obscenity law as formed by Miller v. California; the constitutionally-mandated demise of the earlier Communications Decency Act and its subsequent replacement by COPA; as well as some other permutations on internet porn regulation.

Second, there was this even-more-tedious post looking in some detail at last year's Supreme Court decision concerning the Children's Internet Protection Act (CIPA); the ruling upheld the law that provided significant incentives for public libraries and schools to put filters on all of their Internet connections.

Third, the first two long posts were brilliantly joined in this post, that looked at how the CIPA ruling found its way into the COPA case.

Fourth, this post offered a few words about Justice Breyer's dissenting opinion and Justice Stevens's concurring opinion.

Other deep commentary on the decision has been provided by US Congressman Mark Foley (R - Florida), who found himself astonished: "I'm am stunned the High Court, once again, sided with pornographers over children." Yes, who will protect Our Children from the fiendish child-haters who somehow have wormed their way onto the Supreme Court? Great-grandfather but friend-to-vile-pornographers Justice Stevens gets the final word (case citation omitted):

COPA's criminal penalties are, moreover, strong medicine for the ill that the statute seeks to remedy. To be sure, our cases have recognized a compelling interest in protecting minors from exposure to sexually explicit materials. As a parent, grandparent, and great-grandparent, I endorse that goal without reservation. As a judge, however, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing habits.

Labels: CIPA, COPA, internet, pornography, Supreme Court, teens

 
Just a Few More Words About COPA
- posted by Jim Leitzel @ 3:31 PM

You can find some good commentary about yesterday's ruling at Balkinization and here and here at the Volokh Conspiracy. I'll mention that I, too, thought that Justice Breyer's claim that COPA targeted material that was either legally obscene or nearly obscene seriously downplayed the potential scope of COPA. And he and I have different imaginations, it seems, given that he thinks "one cannot easily imagine material that has serious literary, artistic, political, or scientific value for a significant group of adults, but lacks such value for any significant group of minors." (Minors here are people less than 17.) And I imagine that some courts will be happy to find lots of non-legally obscene material nevertheless lacking in serious value for minors. But I do share a concern that is noted in the Breyer dissent, namely, that the failure to uphold COPA will lead to more restriction on speech, not less, if current obscenity laws are enforced more strictly when a COPA-like mechanism for shielding kids from smut is not available.

Justice Breyer also notes in his dissent that the existence of a "compelling interest" by the government in protecting minors from commercial smut is not a subject of dispute: "No one denies that such an interest is 'compelling.'" Well, I might be willing to deny it, or at least to suggest that the claim could benefit from some discussion. (In the February, 2003 William and Mary Bill of Rights Journal, Ashutosh Bhagwat has an interesting article that distinguishes between a governmental interest in helping parents shield their kids from porn, and an independent direct governmental interest in keeping kids from porn.)

Finally, I haven't seen any commentary on Justice Stevens's concurring opinion (joined by Justice Ginsburg), so I will mention some of the points that it makes. Stevens backs up the Appeals Court reasoning from the first time that the Supremes took on this case, namely, that the "community standards" approach alone leads to unconstitutionality:

I continue to believe that the Government may not penalize speakers for making available to the general World Wide Web audience that which the least tolerant communities in America deem unfit for their children's consumption, cf. Reno v. American Civil Liberties Union, 521 U. S. 844, 878 (1997), and consider that principle a sufficient basis for deciding this case.

Professor Stevens also implicitly takes aim at the claim in Justice Breyer's dissent that COPA really isn't all that restrictive:

I wish to underscore just how restrictive COPA is. COPA is a content-based restraint on the dissemination of constitutionally protected speech. It enforces its prohibitions by way of the criminal law, threatening noncompliant Web speakers with a fine of as much as $50,000, and a term of imprisonment as long as six months, for each offense. 47 U. S. C. §231(a). Speakers who "intentionally" violate COPA are punishable by a fine of up to $50,000 for each day of the violation. Ibid. And because implementation of the various adult-verification mechanisms described in the statute provides only an affirmative defense, §231(c)(1), even full compliance with COPA cannot guarantee freedom from prosecution. Speakers who dutifully place their content behind age screens may nevertheless find themselves in court, forced to prove the lawfulness of their speech on pain of criminal conviction.

Labels: COPA, internet, pornography, Supreme Court, teens

 
COPA and CIPA
- posted by Jim Leitzel @ 1:25 PM

Having wasted your time with a long post about last year's library internet porn case, I feel obligated to at least mention how it is relevant for yesterday's decision regarding the Child Online Protection Act (COPA).

The majority upheld the Third District's affirmation of the District Court's preliminary injunction because content-based speech restrictions are presumptively invalid. Once contested, the government has the burden of overcoming that presumption, in part by showing that there do not exist plausible alternatives that serve the same end while simultaneously being less restrictive upon speech. The government failed to make such a showing, and therefore, the Court ruled, the District Court did not abuse its discretion when it issued the preliminary injunction.

The main alternative considered by the District Court in making its decision was software that blocks or filters objectionable material, and here is the chief connection to last year's library case. Specifically, the previous case helps to establish the viability of a filtering alternative. The Court proceeds as follows. Perhaps it might be argued that filters are not really a plausible alternative, because the government cannot order people to use filters on their home computers, but (perhaps) the government can order commercial porn websites to set up an age check or credit card screen. According to the majority opinion...

That argument carries little weight, because Congress undoubtedly may act to encourage the use of filters. We have held that Congress can give strong incentives to schools and libraries to use them. United States v. American Library Assn., Inc, 539 U. S 194 (2003). It could also take steps to promote their development by industry, and their use by parents. It is incorrect, for that reason, to say that filters are part of the current regulatory status quo. The need for parental cooperation does not automatically disqualify a proposed less restrictive alternative. Playboy Entertainment Group, 529 U. S., at 824. ("A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act"). In enacting COPA, Congress said its goal was to prevent the "widespread availability of the Internet" from providing "opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control." Congressional Findings, note following 47 U. S. C. §231 (quoting Pub. L. 105-277, Tit. XIV, §1402(1), 112 Stat. 2681-736). COPA presumes that parents lack the ability, not the will, to monitor what their children see. By enacting programs to promote use of filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties.

A second rationale for preferring the less-restrictive filter alternative comes from a government commission that issued a report on controlling Internet porn two years ago -- and the commission, which itself was established via COPA, found that filters were more effective than age-verification requirements.

Justice Breyer's dissent also invokes the library case. He points out that filters are currently part of the scene, and he views the (or at least one) relevant question to be whether or not "filters plus COPA" does a better job at protecting kids from harmful-to-minors material than does the status quo of filters alone. Breyer quotes from Justice Stevens's dissent in the library filters case, to help establish the point that current filters exclude much material that is not objectionable while allowing through some obscene images.

Labels: CIPA, COPA, internet, pornography, Supreme Court, teens

 
Last Year's Internet Pornography Case: Smut and Public Libraries
- posted by Jim Leitzel @ 12:02 PM

Yesterday's Supreme Court decision in Ashcroft v. ACLU et al. has motivated me to provide some background into the whole issue of regulating Internet pornography. That background continues now with a look at a case that was decided last June, U.S., et al. v. American Library Association, et al. My discussion is based primarily on the Supreme Court decision itself, but also draws on (and, I think, coheres with) a column by Steve Chapman, "The Internet Law that No One Missed," from the Chicago Tribune, June 26, 2003, p. 27 (though the link is to the version that appeared in the Washington Times.) Last year's case was brought up in both the opinion for the Court and a dissent in yesterday's COPA ruling.

A lack of Internet access puts enormous amounts of material out of reach. Public libraries, therefore, have been assiduous in trying to secure and augment Internet access for their patrons. Of course, the material that the Internet makes available ranges over the full spectrum, from the most detailed, prosaic data to the most lurid photographs and films, including many which are prohibited as "obscenity." Sometimes kids (and adults, too) in public libraries access the lurid material, often purposely. Sometimes they even leave it on the screen so that the next user is involuntarily exposed to indecent images.

The specter of such questionable use of public Internet connections brought a federal response. The US Congress passed the Children's Internet Protection Act (CIPA) in December 2000. Most public libraries in the US receive federal funds earmarked to help them establish and maintain Internet access. CIPA requires public libraries that receive such federal funding to install filters on all of their computers that are connected to the Internet.

The constitutionality of CIPA was challenged by the American Library Association, as well as by a long list of plaintiffs, including two candidates for Congress whose websites were blocked by filtering software. An injunction prevented the implementation of CIPA until the case was finally decided by the Supreme Court. On June 23, 2003, the Supreme Court (in a 6-3 decision) upheld the constitutionality of CIPA, overturning the earlier ruling of a US District Court. Three other justices (O'Connor, Scalia, and Thomas) signed on to the opinion written by Chief Justice Rehnquist, while two additional justices (Kennedy and Breyer) agreed with the outcome, though each provided a separate opinion. Essentially, the Rehnquist decision argued that the free speech issues at stake in CIPA were minimal: "A library's decision to use filtering software is a collection decision, not a restraint on private speech." Further, the law allows librarians to disable the filtering software if an adult makes a request consistent with "bona fide research or other lawful purposes." CIPA, according to the Rehnquist decision, does not violate free speech protections, while it enables Congress's legitimate purpose of limiting the manner in which its authorized spending is undertaken.

Both sides of the Court recognized the fallibility of filtering software. Current incarnations of such software vastly overexclude material, precluding access to unobjectionable, non-obscene sites. (Filters also allow some pornography to pass unmolested, especially as filters rely on text and have no reliable way to judge the content of photographs.) In his dissent, Justice Stevens argued that "a statutory blunderbuss that mandates this vast amount of 'overblocking' abridges the freedom of speech protected by the First Amendment." The fact that the filters could be removed upon request does not vacate the First Amendment concerns of Justice Stevens, in part because a user doesn't know precisely what is blocked in advance. CIPA also requires that every Internet-enabled computer in a library be filtered, even if only one of the computers was purchased with (some) federal funds, and even if the computer is solely for the use of library staff. "This Court should not permit federal funds to be used to enforce this kind of broad restriction of First Amendment rights, particularly when such a restriction is unnecessary to accomplish Congress' stated goal." Justice Stevens noted that in the absence of the CIPA requirement, only 7 percent of surveyed libraries indicated that they dealt with the problem of adolescent access to Internet pornography by installing filters on all computers.

Justice Souter's dissenting opinion, joined by Justice Ginsburg, observed that the disabling of the filters upon request was not automatic -- the statute only stated that librarians "may" unblock when a request is received. Justice Souter further took issue with the plurality's claim that CIPA involved not censorship, but a "collection decision" akin to that of which books to purchase:

...In the instance of the Internet, what the library acquires is electronic access, and the choice to block is a choice to limit access that has already been acquired. Thus, deciding against buying a book means there is no book (unless a loan can be obtained), but blocking the Internet is merely blocking access purchased in its entirety and subject to unblocking if the librarian agrees. The proper analogy therefore is not to passing up a book that might have been bought; it is either to buying a book and then keeping it from adults lacking an acceptable "purpose," or to buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults.

CIPA's litigation history may well not end with the Supreme Court decision of 2003. In that case, CIPA was challenged on its face as unconstitutional, and the Court ruled against such a challenge. The implementation of CIPA, however, could result in further challenges, especially if adults are denied relatively swift and painless unblocking. (OK, this one hits close to home for this vice researcher, who frequently has accessed the Internet in public libraries, on topics such as pornography, obscenity, and other areas likely to raise flags for filters.)

The passage of CIPA, it seems to me, is a perfect example of legislation that should never have been adopted, under the old adage "don't make a federal case out of it." The 93 percent of libraries that previously chose otherwise now have no choice, absent the loss of what for many are significant funds, to install filters on all of their computers attached to the web. And for what gain? As Internet access expands, fewer and fewer adolescents will need to rely on public libraries if they choose to procure pornography. And for those whose search for Internet porn is limited to public settings, librarians had already implemented policies to control such behavior. But now we are saddled with a federal rule that ultimately will have essentially no impact on adolescent exposure to pornography, but will inconvenience thousands of library internet users, who among other things, might be prevented from accessing the Supreme Court's decision in US v. American Library Association, et al. (2003).

Labels: CIPA, COPA, internet, obscenity, pornography, Supreme Court, teens

 
COPA Manana?
- posted by Jim Leitzel @ 12:51 AM

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!

Labels: COPA, internet, pornography, Supreme Court, teens

 
Vicewire, 6/29/2004
- posted by Ryan @ 8:56 PM

1) A big vice story of today is the Supreme Court's decision to block enforcement of an internet pornography law. The controversy is over the 1998 Child Online Protection Act which has not yet been enforced, and has been pushed back down to a lower court. The Supreme Court decision is here.

2) From England, we see a father alerted a gang to his son's cocaine stash, from which an attempted robbery ensued. He was given a 20 year jail sentence and his son was given 20 years for "conspiracy to supply drugs".

3) In other big Supreme Court news, the high court agreed to hear a case next year concerning the prosecution of people who take marijuana on a doctor's orders. The Bush Administration argued that federal drug laws take precedence over state laws for medicinal marijuana, which 35 states have.

4) And in addressing the continual Vice Squad topic of vice advertising, French vintners are attempted to free up alcohol ad restrictions, to the horror of many medical groups. The President of the National Association for the Prevention of Alcoholism and Addiction: "Advertising would just legitimize problem drinkers in their problem drinking." Say that sounds like a familiar argument justifying the criminalization and prohibition of drugs...

This Day in Vice History: 6/29/1938- A radical Christian newspaper claims that half of the crime in "Latino American, Filipino, Spaniard, and Negro" districts is attributable to marijuana. And yesterday, the first draft of the Declaration of Independence was written- on hemp paper! Thanks to Stop the Drug War.

Labels: alcohol, COPA, internet, marketing, pornography, Supreme Court, Vicewire