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Random Musings
Vol. 1, No. 7: Online Pornography and the Protection of Minors, Part III: Fighting it out in the Courts

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 third of a three-part series examining the history and status of the Child Online Protection Act (COPA), which makes it unlawful to make material harmful to children available on the internet. This part analyzes the legal issues and the courts' decisions in the COPA litigation. Part I is a commentary of my opinions concerning why such legislative efforts are doomed to fail and suggesting alternatives. Part II summarizes COPA and other statutes.

A Synopsis of the COPA Litigation

When COPA was signed into law, ACLU and others immediately filed a lawsuit seeking declaratory and injunctive relief. The battle in the courts has gone on for over seven years and is still far from complete. There has been one decision by the District Court and two each by the Court of Appeals and the Supreme Court in this case. Currently there is an injunction against enforcing COPA and the case is scheduled for trial in the Eastern District of Pennsylvania in June of 2006. What follows is a discussion of the decisions in the case by the District Court, the Appeals Court, and the Supreme Court. Included in the discussion are the following decisions:

Before turning specifically to the court battles and an analysis of the decisions, a brief discussion of First Amendment law and other legal principles may assist the lay reader in understanding the analysis. It is important to keep in mind that volumes have been written on these sometimes complicated concepts and what follows is necessarily a very basic summary of them.

Legal Primer One: First Amendment Law

"Congress shall make no law . . . abridging the freedom of speech." These few simple words from the First Amendment have led to innumerable court cases and decisions by the Supreme Court. Taken literally, it would seem that few questions should arise. Obviously, however, some restrictions on speech are both permissible and desirable, the old caveat that the freedom of speech does not allow one to yell "Fire!" in a crowded theater being perhaps the best statement of the principle. Oliver Wendell Holmes once put it this way: "The freedom to swing your arm stops at the point of the other fellow's nose." At no time in our history, from the time the Constitution and Bill of Rights were adopted to the present day, has the "freedom of speech" been considered to mean that anyone could say anything they wanted at any time and place. Indeed, at the time of the framing of the First Amendment, the meaning of "freedom of speech" was a great deal more limited than it is today. It is thus inaccurate to say the First Amendment guarantees "free speech" as opposed to "freedom of speech." The difference may be illustrated by listening to any taxpayer who can tell you that despite what might be claimed, the United States is not a "free country."

The Fourteenth Amendment insures that states will not deprive people of guaranteed rights without due process and through this clause the First Amendment applies to state and local governments as well. Moreover, even though the Amendment specifies "Congress" and enactment of laws, governmental action through policy, regulation, etc., is also prohibited. The term "freedom of speech" has also been interpreted to include the "freedom to hear" and to include any method of self-expression, whether in oral or written form or other means. It is important to note that freedom of speech is guaranteed only in relation to government action. Private groups may limit their members in any way they see fit.

A major portion of the case law pertaining to the First Amendment has come from situations involving obscenity and pornography, political speech, and defamation. Courts have long held that the First Amendment does not permit regulation of speech based on its ideas, subject matter or content. Indeed, the cornerstone of the First Amendment is to ensure open debate and to protect what has been called the "marketplace of ideas." Such "content-based" regulation receives strict scrutiny, requiring the government to show a compelling government interest and that the law or regulation is the least restrictive means to achieve that interest. In most cases, the compelling government interest is the lesser issue with the focus being on whether less restrictive means could protect that interest. We will see that is true in the COPA litigation as there has been little dispute concerning the interest in protecting children from harmful material.

The "least restrictive means" analysis has two main prongs. First is whether the interest to be protected requires restricting speech at all. The second issue, and the one that has provided the greatest difficulty in many cases, including COPA, is whether the restrictions on expression are "overbroad," that is, whether the law affects speech not related to the interest. A law may be overbroad "on its face" by specifically restricting speech by its terms or "as applied." Claims that a statute is vague in its definition of what speech is being regulated are often the cornerstone or arguments that a statute is overbroad as applied.

One restriction on speech that will often pass the least restrictive means test is commonly referred to as "time, place, and manner" restriction. The government may limit the time someone may engage in speech, the place they do it, and the manner in which they do it. For example, soap box speeches may be permitted in certain pubic areas but not others. Even in those areas, such orations may be limited to specific times and the manner in which they are delivered may be regulated. Thus, a city government may set aside a certain area of a public park for soap boxes, bar the speeches after a certain time at night, and bar the use of megaphones or other amplifying equipment to protect the peaceful enjoyment of the park by people in other areas. The "place" element of this unified trio has been expanded to allow restriction of certain speech to equally certain areas. Thus, a city may require shops dealing in pornographic material to be located in a certain area, a specified distance from schools or parks, etc. As with any restrictions, limiting all speech by time, place, and manner passes muster much more easily than those based on the content. However, time, place, and manner restrictions that burden a particular type of speech are often upheld by showing such restrictions are the least restrictive means. Providing reasonable alternatives for expression is often a key element.

Case law distinguishes several kinds of speech that enjoy less protection. Most notable for the purposes of this article is commercial speech. The Supreme Court has long held that strictly commercial speech enjoys less First Amendment protection and such speech may be heavily regulated. Identifying what is or is not commercial speech and whether legislation is narrowly tailored to ensure that it does not reach noncommercial speech is problematic. These problems are very apparent with COPA.

In all of this analysis, perhaps no area has been more heavily litigated or provided greater inconsistencies in court decisions than obscenity and pornography. A full exploration of the principles that have evolved in this area is impossible. Briefly, however, the general rule is that obscenity and indecency are outside the protection of the First Amendment; that is to say that obscene expressions are not a type of speech included in the "freedom" of speech. Regulation of obscenity therefore is reviewed by the courts not with strict scrutiny but only on a "rational basis" analysis as most other law that does not impact the First Amendment or other fundamental right. The "rational basis" test is passed if there is some articulable and reasonable basis for the law.

Quite naturally, the simple statement that obscenity is not protected speech does not come close to ending the analysis. The task of defining "obscene" has proven to be nearly insurmountable. The common, ever day definitions are not sufficient for the legal framework. Indeed, at a time when "hard-core pornography" was considered to be obscene, Justice Stewart stated succinctly the difficulties: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it." Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J, concurring).

After several attempts to define obscenity, the Supreme Court finally determined that material must meet three criteria to be considered obscene. Miller v. California, 413 U.S. 15 (1973). These criteria are:

The Court in Miller declined to use a national standard and held that "community standards" applied to the particular state or community that was seeking to enforce a particular law or regulation. The Court specifically stated that people in Maine and New Hampshire were not required to be exposed to material people in Las Vegas found to be unobjectionable. Although Miller did not indicate how "patently offensive" in the second prong was to be defined, later cases have held that contemporary community standards provide the yardstick to determine whether the depiction or description is patently offensive.

The Miller definition and standards are still "good law" and a state or local government could outlaw any material that matched the definition. As a practical matter, even in the smallest of communities, the determination of "community standards," "patently offense," and "serious artistic, political, or scientific value" has been elusive at best. As a result, attempts to completely outlaw any form of pornography have largely been abandoned and most restrictions on pornography and other material that many might consider meets the Miller criteria are limited to the "place" element of time, place, and manner restrictions with the sale or display of such material being limited to certain area of towns and cities.

One final word may be of importance. Except for child pornography, and very few other exceptions, the private possession in one's home of obscene or pornographic material has never been a crime. In many instances, this fact has been one of the inconsistencies in the attempts to regulate this material because laws have often banned the sale or other distribution of such material. The fact that someone in some way would have to sell or distribute the material to a person in order for that person to privately possess it in his home is one of the contradictory quirks that often seem to permeate the legal system.