Did the Courts Get It Right? con't

Contemporary Community Standards

Although the ruling that COPA is not the least restrictive means makes other considerations somewhat moot, those considerations do have some importance both for COPA and for future attempts to regulate speech on the Internet. The application of contemporary community standards to ascertain whether the speech in question appeals to prurient interest and is patently offensive grew out of a series of Supreme Court cases culminating in Miller v. California, 413 U.S. 15 (1973), and is more fully discussed in Part III of this series. While reliance on community standards has problems in itself, even if we are to assume that those cases were correctly decided, they dealt primarily with the sale of physical objects in physical locations, i.e., books, magazines, and other printed material in shops. Even the cases preceding Miller that dealt with mailing material are a far cry from the Internet. Attempting to adapt standards developed for printed material ignores the vast difference between the corner bookstore and the Internet.

The legal system in the United States moves slowly as a rule, both from the legislative and judicial perspective. COPA, like many laws applying to the Internet, attempts to fit new technology into the parameters of law that was established even before conception of the Internet, to say nothing of its reality. Such attempts result in ineffective solutions at best and, as here, violations of fundamental rights including those of free speech, at worst.

The problem is perhaps nowhere better exemplified than in Justice Thomas' statement in the Supreme Court's first look at COPA, that 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." While such a statement might have some reasonable validity in analyzing a prohibition against selling pornography in a certain community, it ignores both the nature of the Internet and the constitutional implications of an essentially blanket ban of material. It is a far different matter for a bookseller to refrain from opening an outlet in Potwin, Kansas, than it is for person to be foreclosed from using the Internet as a medium because he cannot prevent transmissions to Potwin, Kansas.

Although some of the Justices did remark that COPA would subject everyone to the most restrictive community in the country, for the most part the Supreme Court overlooked this crucial difference between the form of the material at issue in Miller and material on the Internet. Applying "contemporary community standards" to determine what appeals to prurient interest and is patently offensive poses problems regardless of the medium. These problems are compounded immeasurably when the medium is the Internet.

Can COPA be Fixed?

I do not believe that any statute that attempts to impose blanket restrictions on the availability of pornography and other material in the manner that COPA does can pass constitutional scrutiny. There are simply too many hurdles to leap in order to ensure that First Amendment concerns are protected. Defining what is harmful to children is an exercise that necessarily results in unconstitutionally vague limits or equally unconstitutional restrictions on harmless material. The line to be drawn between material that is harmful and that which is suitable for children would be drawn is as many different places as the number of people asked to draw it.

Resorting to some ill-defined "contemporary community standards" is impractical and unworkable. In effect, this concept has always reduced First Amendment protections to an issue of majority rule. One of the basic principles protected by the First Amendment is that the majority should not be able to silence the minority. In the 30 or 40 years since this concept was introduced into the analysis of what communities could do in efforts to limit pornography, the world has indeed become a smaller place and "communities" can no longer be defined by geographic boundaries. Arguably the widespread availability of pornography, much of it extremely hardcore, on the Internet indicates that pornography is not "patently offensive" to the community composed of Internet users.

Even if some acceptable definition of "harmful to children" could be advanced, whether relying on community standards or some other basis, the insurmountable difficulty in legislation such as COPA that attempts blanket restrictions is that it is ineffective in advancing the compelling interest of protecting children. The availability of pornography from sources other than those covered by COPA, such as newsgroups, chat rooms, email, and websites from outside the United States, means that COPA does not truly protect children from this material. It only means that it may take a few seconds longer for them to be exposed to it.

Another major problem with COPA that the courts only briefly alluded to is its treatment of all minors under 17 as a group, ignoring the differences between 16-year-olds and 5-year-olds. Any privilege, restriction, or other distinction that rests on some element of age has problems. Age-based statutes effectively make it illegal for people to drive, drink, have sex, or do any number of things today, but legal tomorrow. The fact is that no one suddenly undergoes a magical transformation of maturity upon reaching a sixteenth, eighteenth, twenty-first, or any other birthday. For most issues, there is not a reasonable alternative to a contrived age-based formulation.

Regardless of how anyone would define "harmful to children," it is inescapable that the definition would include material with respect to 5-year-olds that would not be included with respect to 16-year-olds. By COPA's terms, however, this distinction makes no difference. A person would be committing a crime by making material available to 16-year-olds if the material is not appropriate for a younger age group regardless of the steps taken to ensure the younger group did not have access to the material. The near-impossibility of making age-appropriate distinctions within the overall group of minors further dooms COPA or any modification of it to a finding of being overbroad and thus in violation of the First Amendment.

What is Congress to Do?

In his dissent to the last Supreme Court decision upholding the injunction against enforcing COPA, Justice Breyer noted that the statute closely tracked the language in Miller and asked "What is Congress to do?" That is, of course, the basic question that must be answered along with the question of whether all this means that Congress and others concerned with protecting children are left with nothing they can do. The answer to that second question is "Not at all."

There is much that Congress and others can do, but to do so successfully requires that certain immutable facts be accepted. Despite difficulties in definition, most would agree that there is a compelling interest in protecting children from harmful material, indeed, harm of any kind. In today's world, perhaps more than ever, it is probably impossible for the government to reach this goal by direct legislation and at the same time honor First Amendment principles and other freedoms. On the other hand, leaving protection of children entirely to the responsibility of parents also ignores the realities of the modern world and the pervasiveness of online objectionable material.

Thus, Congress and local legislative bodies must first recognize that no attempt to protect minors from harmful material on the Internet by any means of blanket restrictions on the availability of the material can succeed fully or even to a meaningful degree and at the same time protect First Amendment rights. Even if everyone agreed that the Miller standards are constitutional with respect to written material, and I do not believe they are, those standards simply cannot be adapted for use with the Internet. Congress must stop seeking solutions based on legal models that were of questionable validity decades ago and move its focus into the realities of the technological era.

No statute can fully ensure the protection of children and as long as resources are spent on that impossible goal, real solutions are impossible. The first step to the ultimate solution, or what comes as close to a solution as realistically possible, is for Congress to recognize this. What Congress can do, moreover, is to recognize that protecting children must be a joint effort. It can provide the tools and environment for parents and others and also provide the education and incentives to use these tools. The ultimate responsibility for protecting children from harmful content on the Internet must fall on parents and other caregivers in much the same way as protecting them from other harms fall on them.

Many would argue that not only the ultimate responsibility for such protection falls on parents, the entire responsibility falls on them, and the government should not make expenditures on efforts that should be left to parents. That would perhaps be a viable argument if we lived in a world where all parents were responsible, dedicated, and well-informed. As with any other governmental involvement in protecting the welfare of children, however, lack of such involvement would leave protection of children to the whims of the accidents of birth, with those being unfortunate enough to be born to ill-informed or uncaring parents left to the wolves. In the long run, this approach is far more expensive for all of us.

Congress can best achieve the goal by concentrating on two areas: filtering mechanisms and "zoning ordinances" for the Internet, along with a third area of education. While the final form of legislation and programs aimed at these areas would require further study and analysis, such an approach holds greater promise than current efforts.