A.  High Court Ruling Stirs Debate

on Internet Community Standards 

 

      In a case with broad implications for the enforcement of obscenity law on the Internet, the U.S. Supreme Court reversed a decision of the U.S. Court of Appeals for the Third Circuit to enjoin enforcement of the Child Online Protection Act (COPA), successor to the ill-fated Communications Decency Act (CDA).  Ashcroft v. ACLU, 122 S. Ct. 1700 (2002).  The Court rejected the court of appeals’ reasoning that the borderless nature of the Internet rendered unconstitutional restrictions on expression deemed “harmful to minors” where legal liability is based on “community standards.”  The Supreme Court remanded the case to the lower court to further explore the meaning of obscenity law in the Internet age.  On remand, the Third Circuit reaffirmed its initial finding that COPA violates the First Amendment.  ACLU v. Ashcroft, No. 99-1324 (3rd Cir. March 6, 2003).

      Beyond determining the fate of COPA, Ashcroft v. ACLU reopened questions at the center of the Court’s struggle of more than four decades to establish a workable standard for regulating obscenity.  Although COPA applied a “variable obscenity” test for material considered “harmful to minors,” that legal standard is based essentially on the same analytic factors that define obscenity for adults.  Obscenity law had been relatively settled since the 1973 decision in Miller v. California, 413 U.S. 15 (1973), where the Supreme Court reaffirmed that the “patent offensiveness” and “prurient appeal” of sexually oriented materials should be determined by reference to contemporary community standards.  But the decision in Ashcroft v. ACLU revived the debate that raged on the Court before Miller, about what kind of standards -- and which community -- should govern obscenity determinations.

      Even as the justices were deliberating COPA’s fate, the National Research Council of the National Academy of Science (NAS) was preparing to release a much-anticipated study on ways to protect children online.  In November 1998, Congress directed NAS to undertake a study of “computer-based technologies and other approaches to the problem of the availability of pornographic material to children on the Internet.”  Pub. L. No. 105-314, Title IX, Sec. 901, 112 Stat. 2991 (1998).  The National Academy announced the results of its study, more than two years in the making, in May 2002.  Titled Youth, Pornography, and the Internet (2002), the study concluded that law enforcement may not be the most effective way to protect children on the Internet.

 

Background

      COPA was adopted as a reaction to the Supreme Court’s 1997 decision invalidating key provisions of the Communications Decency Act.  Reno v. ACLU, 521 U.S. 821 (1997).  Congress sought to avoid the same fate for COPA by designing the law to be narrower than the CDA.  Unlike the CDA, COPA does not apply to all sexually oriented information on the Internet, but prohibits making “any communication for commercial purposes” over the World Wide Web that “is available to any minor and that includes any material that is harmful to minors.”  It generally uses the three-part test for obscenity set out in Miller v. California as applied to minors, and thus covers material that “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.”

      The U.S. District Court for the Eastern District of Pennsylvania issued a preliminary injunction barring the enforcement of COPA.  The court found that plaintiffs were likely to succeed on the merits of their constitutional claim -- that the law would impose burdens on constitutionally protected speech, that it would chill online speech in general, and that the government had failed to demonstrate that COPA is the least restrictive means of serving its purpose. 

      The Third Circuit upheld the injunction, but did not rely on the lower court’s particularized analysis of the statute.  Instead, it focused on the futility of applying “contemporary community standards” to the Internet.  The court found that “web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users.”  Accordingly, it based its holding entirely on the likely unconstitutionality of “community standards” in the Internet context.

 

Supreme Court Weighs In

      By a vote of 8 to 1, the Supreme Court reversed the court of appeals and remanded the case for further proceedings, keeping the injunction in place in the interim.  While ostensibly a very narrow ruling that affected only the Third Circuit’s rationale, the Court’s decision in Ashcroft v. ACLU reopened decades-old debates over the meaning of community standards.  The five separate opinions recalled the doctrinal conflicts of the 1960s with some justices embracing local standards for obscenity, others endorsing national standards (as interpreted by local juries), and still others remaining undecided, or choosing none of the above.  It leaves to the court of appeals the unenviable task of deciding whether COPA lives or dies, and fashioning a rationale that will garner majority support on a fractured Supreme Court.

      Finding a majority view in Ashcroft v. ACLU is a daunting task.  Although five justices signed onto various portions of the opinion of the Court, the only point on which they could agree was that “COPA’s reliance on community standards to identify ‘material that is harmful to minors’ does not by itself render the statute substantially overbroad for purposes of the First Amendment.”  Ashcroft, 122 S. Ct. at 1713 (emphasis in original).  Beyond that one point of agreement, there was a significant division over how community standards should apply to the Internet. 

      Justice Clarence Thomas, joined by Justice Antonin Scalia and Chief Justice William Rehnquist, took the hardest line, reasoning that jurors may draw upon their personal knowledge of their own communities where the law does not specify a particular geographic area.  If, as a result, speakers on the Internet must conform to varying local standards, so be it.  Those who fear draconian local enforcement can simply avoid using the Internet as a means of communication.  As Justice Thomas put it: “If a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.”  In this view, unreasonable local standards are moderated by the “serious merit” criterion, which enables appellate courts to set “a national floor for socially redeeming value.”  Id. at 1710, 1712 (citation omitted).

      Justices Sandra Day O’Connor and Stephen Breyer each wrote separately to express their disagreement over which community standard to apply.  Although both concurred in the judgment of the Court, they argued that the Constitution requires the use of a national standard to judge speech on the Internet.  Otherwise, Justice Breyer wrote, “the most puritan of communities” would have “a heckler’s Internet veto affecting the rest of the nation.”  Id. at 1716 (Breyer, J., concurring).  He cited language from COPA’s legislative history for support that Congress intended to employ an “adult” standard rather than a “geographic” standard for determining what material is “suitable for minors.” 

      Justice O’Connor similarly expressed some concern that the use of local community standards “will cause problems for regulation of obscenity on the Internet, for adults as well as children, in future cases.”  She suggested that Miller allowed the application of local standards but did not mandate their use, and disputed the Court’s earlier conclusion that a national standard is “unascertainable.”  Id. at 1714-15 (O’Connor, J., concurring).

      Although Justices O’Connor and Breyer expressed concern about the application of local community standards to Internet speech, both acknowledged that jurors inevitably would base their assessments of a national standard to some extent on their local perceptions.  They found the prospect of such inherent regional variations to be constitutionally acceptable “in a system that draws jurors from a local geographic area.”  Id. at 1716 (Breyer, J., concurring); id. at 1715 (O’Connor, J., concurring).  Their two concurring opinions suggested that the application of a national standard on remand might be sufficient to cure any constitutional defects in COPA.

      Justice Anthony Kennedy, on the other hand, was far less positive about the law’s prospects.  Joined by Justices David Souter and Ruth Bader Ginsburg, he wrote that there is a very real likelihood that COPA is overbroad and cannot survive a facial challenge.  He suggested that the Court should proceed cautiously in light of Congress’s attempt to fashion a narrower law than the CDA; for that reason, the Third Circuit’s community standards rationale “stated and applied at such a high level of generality” could not be sustained.  

      Nevertheless, Justice Kennedy explained that a range of concerns may invalidate COPA’s variable obscenity standard, including the variation in community standards, the question of what constitutes the work “as a whole” on the Internet,  and the type and amount of speech restricted by COPA, among other factors.  Such questions, he reasoned, are interrelated and require comprehensive review by the court of appeals. 

      Justice Kennedy stressed that such review must give special weight to the Internet: “When Congress purports to abridge the freedom of a new medium, [courts] must be particularly attentive to its distinct attributes, for ‘differences in the characteristics of new media justify … differences in the First Amendment standards applied to them.’”  Despite “grave doubts that COPA is consistent with the First Amendment,” he concluded that the Court should await a more thorough analysis by the Third Circuit.  Id. at 1718-22 (Kennedy, J., concurring) (citations omitted).

 

Sole Dissenter

      The sole dissenter was Justice John Paul Stevens, author of the Court’s opinion in Reno v. ACLU.  In his view, it is “quite wrong to allow the standards of a minority consisting of the least tolerant communities” to regulate access to the World Wide Web.  In its original form, Justice Stevens noted that the community standards formulation “provided a shield for communications that are offensive only to the least tolerant members of society.” 

      Before the Supreme Court infused obscenity determinations with First Amendment considerations, lower courts judged such cases by the presumed impact of sexually oriented material on the most vulnerable members of society.  After 1957, courts asked whether the average person, rather than the most sensitive, would find material patently offensive considering contemporary community standards.  In the Internet context, however, Justice Stevens found that “community standards become a sword rather than a shield” because “[i]f a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web.”  Id. at 1722-23 (Stevens, J., dissenting).

      Acknowledging that COPA was an improvement over the CDA, Justice Stevens nevertheless concluded that the changes were insufficient to cure the law’s constitutional deficiencies.  The elements of COPA’s “harm to minors test” did not narrow the law sufficiently, he concluded, because the “patently offensive” and “prurient interests” elements of the standard depended on a community standard.  The requirement that the material be “in some sense erotic” similarly did not narrow its scope, since “[a]rguably every depiction of nudity -- partial or full -- is in some sense erotic with respect to minors.”  Id. at 1725 (emphasis in original).  Similarly, the “serious value” prong of the test did not narrow the scope of COPA, since it requires juries to determine whether the material has serious value for minors.  Accordingly, Justice Stevens concluded that the community standards analysis alone was sufficient to doom COPA.

      In sum, the Court in Ashcroft v. ACLU not only declined to decide whether COPA violates the First Amendment; it provided no clear guidance for how the court of appeals should answer that ultimate question.  The only point of clarity was that eight justices were dissatisfied with the Third Circuit’s initial attempt.  On remand, the appellate court must craft a decision that will survive Supreme Court review by parsing the five separate opinions.  Three justices (Thomas, Scalia, and Chief Justice Rehnquist) clearly support the law and approve using local community standards to define obscenity; one justice (Stevens) clearly opposes the law because of its reliance on local community standards; three justices (Kennedy, Souter, and Ginsburg) are deeply skeptical of the law and are wary of imposing local standards on a global medium; and the two remaining justices (Breyer and O’Connor) may support the law if it employs a national standard for variable obscenity.

 

COPA – The Sequel

      On remand, the Third Circuit reaffirmed its earlier finding regarding COPA, but on different grounds.  Specifically, the court held that the district court did not abuse its discretion in preliminarily enjoining enforcement of the law.  Although noting that it was not obliged to determine whether COPA was overly broad and vague, the court of appeals nevertheless did so in order to “touch all bases.”  It found that it was essential to answer “the vexing question of what it means to evaluate Internet material ‘as a whole,’” and that “the plain meaning of COPA’s text mandates evaluation of an exhibit on the Internet in isolation, rather than in context.” 

      As a result, the court concluded that COPA “impermissibly burdens a wide range of speech and exhibits otherwise protected for adults.”  It also found that the term “minor,” as used in COPA, “applies in a literal sense to an infant, a five-year-old, or a person just shy of seventeen.”  The court held that COPA’s application to Internet speech for “commercial purposes” was impermissibly broad, and found that the law’s affirmative defenses failed to insulate protected speech from liability.  Among other things, the court pointed out that affirmative defenses do not provide freedom from prosecution, and noted that the law “raises significant constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful.” 

      The court also concluded that COPA was not the least restrictive means of addressing the problem, and that voluntary use of filtering software by parents was at least as effective in sheltering children from sexually oriented materials.  The court also returned to the community standards issue that the Supreme Court addressed, and concluded that the law’s use of community standards “exacerbates these constitutional problems in that it further widens the spectrum of protected speech that COPA affects.”

 

Just the Facts

      Shortly before the Supreme Court issued its decision in Ashcroft v. ACLU, the National Research Council of the National Academy of Science released its report titled Youth, Pornography, and the Internet (2002) (“NRC Report”) at http://books.nap.edu/books/0309082749/html/index.html.  The report was prepared by a multidisciplinary committee of experts in constitutional law, law enforcement, libraries and library science, information retrieval and representation, developmental and social psychology, Internet and other information technologies, ethics, and education.  Chaired by former U.S. attorney general Richard Thornburgh, the committee found that education was likely to be more effective than law enforcement in protecting children from exposure to sexually explicit materials online.  It explained:

 

While both technology and public policy have important roles to play, social and educational strategies to develop in minors an ethic of responsible choice and the skills to effectuate these choices and to cope with exposure are foundational to protecting children from negative effects that may result from exposure to inappropriate material or experiences on the Internet.  NRC Report at 12. 

     

      The committee found that the types of restrictions contained in COPA impose significant restrictions on adult access to constitutionally protected materials and were unlikely to be effective in blocking access by children.  It noted that making some material available to adults but not to children requires that providers have a reasonably reliable way of differentiating between them.   “In the physical world, such differentiation can often be accomplished with reasonable ease (e.g., by checking a driver’s license or other identification).  But in the Internet context, rules based on age differentiation are highly problematic and technically difficult to enforce.”  Id. at 360.  Specifically, “[i]n an online environment, age verification is much more difficult because a pervasive nationally available infrastructure for this purpose is not available.”  Id. at 63. 

      Moreover, such an infrastructure would be costly and still would not avoid the chilling effect such systems inevitably cause.  As the NRC Report noted, “[t]he underlying technology to support widespread, high-confidence age verification does exist, but its implementation could be very expensive, and its use would raise a myriad of important privacy concerns.”  Id. at 349.

      The global availability of sexually oriented Web sites limits the effectiveness of domestic law enforcement, according to the study.  It pointed out that even the strict enforcement of COPA will likely have only a marginal effect on the availability of such material on the Internet in the United States.  Id. at 207.  While enforcing federal restrictions might lead to a reduction in the overall number of Web sites, such an effect “in and of itself, is not likely to reduce the exposure of children to such material,” the report concluded.  The reason is that a primary method for obtaining access to such material is through search engines, and the likelihood that a search will find some inappropriate material for a given set of search parameters is essentially independent of the number of Web pages represented in that search.  Id. at 360.

      The NRC Report is not the first government-sponsored study to find that speech restrictions are not the most effective way to protect children from exposure to inappropriate materials.  A special commission established by Congress in  the COPA legislation itself (the COPA Commission) reached essentially the same conclusions.  See Final Report of the COPA Commission Presented to Congress (Oct. 20, 2000) at www.copacommission.org.   It found that voluntary user‑side filtering and blocking technologies are more effective (and less restrictive of First Amendment values) than age verification systems based on either credit cards or independently issued identification passwords -- the methods identified in COPA as affirmative defenses to prosecution. 

      While acknowledging that no “single technology or method will effectively protect children from harmful material online,” the COPA Commission made clear that the effort to protect children cannot depend upon new laws that contract the scope of available speech.  The Commission concluded that “the most effective current means of protecting children from content on the Internet harmful to minors include: aggressive efforts toward public education, consumer empowerment, increased resources for enforcement of existing laws, and greater use of existing technologies.”  Id. at 33.

 

--Robert Corn-Revere

 

The author co-authored an amicus brief in Ashcroft v. ACLU and served as an expert reviewer for the National Academy of Science study.