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Random Musings
Vol. 1, No. 5: Online Pornography and the Protection of Minors, Part I: Commentary on Present Failures and a Look to the Future

Random Musings is a collection of opinions, commentary, humor, satire, information and other thoughts escaping from the cluttered mind of the not necessarily well-informed Gerald "grsamf" Smith concerning news and events in the world of computers and their use.

Series Overview

This is the first of a three-part series examining the history and status of attempts by the U.S. Congress to enact legislation to protect children from pornography and other harmful material online. The primary focus is the Child Online Protection Act (COPA). This part is a commentary of my opinions concerning why such legislative efforts are doomed to fail and some suggestions for the future. Parts II and III are somewhat in the nature of "prequels" to this part and contain discussion of legal issues forming the background for this part. Part II examines legal developments that led to congressional enactment of COPA, discusses its provisions in some detail and briefly discusses other statutes designed to protect minors online. Part III analyzes the legal issues which led to the preliminary injunction against enforcement of COPA based on claims that it violates the First Amendment.

In this part, I will discuss why I believe COPA is indeed in violation of the First Amendment and why no legitimate interpretation of it can pass constitutional muster. I will also examine whether any such legislation seeking to provide such blanket protection for minors can be enacted in a way that it could pass such muster. My conclusion is that it cannot. Finally, I will discuss some alternative means to further the goal of protecting minors from objectionable material that would not violate the First Amendment.

Review of COPA and the Current Legal Status

Briefly COPA provides criminal and civil penalties for anyone making material harmful to children under 17 years old available on the Internet for commercial purposes. Material is "harmful to children" if, as determined by employing contemporary community standards, it is designed to appeal or pander to the prurient interests of minors, describes or depicts sexual conduct or genitalia in a patently offensive manner, and is without serious literary, artistic, political, or scientific value. COPA provides for an affirmative defense if the provider screens viewers of the material by requiring credit card identification or other proof of being an adult. More complete information concerning the provisions of COPA and other statutes aimed at ensuring the safety of children online is in Part II of this series.

After several years of litigation in the District Court, the Court of Appeals, and the Supreme Court, the case has now returned to the District Court for trial on the issue of whether COPA is an unconstitutional infringement on First Amendment free speech rights. The final decision will rest on a determination of whether COPA serves the compelling government interest in protecting minors in the least restrictive manner. This is the standard used whenever a statute places restrictions on the freedom of speech. A preliminary injunction has been in place since 1999 while the case has traveled back and forth among the various levels of the federal courts. The Supreme Court upheld the injunction, concluding that the plaintiffs seeking to enjoin enforcement will be likely to prevail on the claim that COPA is not the least restrictive means of achieving the goal of protecting minors because filtering software would be at least, if not more effective. Part III is a more detailed discussion of the standards used by courts to determine when a statute impermissibly restricts speech and analyzes each of the decisions issued by the courts in the COPA litigation.

Did the Courts Get It Right?

Some General Considerations

The answer to the question whether the courts were correct in issuing and upholding the preliminary injunction against enforcement of COPA is both yes and no. The Courts correctly decided that COPA is not the least restrictive means of furthering the compelling interest of protecting minors from harmful material because filters and other means would be less intrusive on protected speech. The courts, particularly the Supreme Court in its first decision in the case erred, however, in failing to consider fully the impact of applying "contemporary community standards" to define "harmful to minors" and other provisions of COPA that conflict with the First Amendment. Later in this Part, I will discuss the failure to recognize the folly of attempting to apply principles developed over thirty years ago to issues concerning the Internet. I have briefly alluded to this in another article dealing with peer-to-peer file-sharing. I will also later discuss the issue of filtering in more detail in conjunction with other measures that can be employed.

Before turning to the discussion of community standards, Justice Scalia's conclusion that COPA applies to commercial speech merits some attention. This is one of the arguments the government advanced in its defense of COPA. Restrictions on commercial speech, because of its nature, have long been held to less stringent standards than restrictions on other categories of speech. Restrictions on commercial speech are analyzed under a 'rational basis test." As the name implies, this test requires only some articulation of a rational, or reasonable, reason for the restriction and is generally much easier for a governmental entity to get past. The "strict scrutiny" test for other forms of speech requires a showing that the restrictions on speech are the least restrictive means of achieving a compelling government interest.

The government's argument and Justice Scalia's conclusion ignore the broad definition of "commercial speech" contained in COPA. It is an inescapable fact that COPA's definition broadens the scope of what has previously been considered commercial speech. The commercial speech doctrine has generally been applied in restrictions on advertising. Thus, until relatively recently bans on advertising by doctors, pharmacists, lawyers and others were upheld. In the past few decades the protection afforded to such commercial speech has expanded. An analysis that would apply the commercial speech doctrine in cases involving restrictions applying to the Internet such as COPA does would not only lessen the protections of commercial speech, it would drastically alter the definition.

Protection of the Compelling Government Interest

One of the factors that goes into the analysis of whether a law is the least restrictive means to advance a compelling government interest is the determination of whether the restriction on speech does, or is likely to, further that interest and to what extent if it will. The Courts ultimately were correct in finding the statute was not narrowly tailored because less restrictive means could achieve the goal of protecting children from online harmful material. The law would have limited success in protecting the interest even if other constitutional criteria could be satisfied. Much of the pornography and other material deemed to be harmful comes from providers outside the United States and therefore beyond the reach of either the criminal or civil penalties of the law. The law also would not prevent other areas of online availability, such as emails, newsgroups, and the like. Nor would it protect children in chat rooms where they would be subject to offensive descriptions of sexual activity as well as to the predatory motivation of many pedophiles who visit chat rooms for teens and younger children for that very purpose.

Given the ineffectiveness of actually protecting the government interest, along with the greater effectiveness of filtering and parental supervision, the District Court was correct in its assessment that COPA was not the least restrictive means, and that ruling was properly affirmed by the Court of Appeals and the Supreme Court. The conclusion is further supported by Congress itself. A study commissioned by Congress during the debate of COPA and published at the same time the law was enacted stated that filtering would more effectively protect children from the harmful material. This statement and the District Court's finding take on even more significance when we remember that it was over six years ago that they were produced.