Preliminary Bout: The Communications Decency Act
Summary of the Court's ruling: The CDA was unconstitutionally overbroad because it would limit speech protected by the First Amendment.
As discussed in Part II of this series, the Communications Decency Act prohibited displaying to persons under 18 "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." As would happen later with COPA, the ACLU and others filed suit seeking to have the CDA declared unconstitutional.
The Supreme Court affirmed the lower court's ruling that CDA violated the First Amendment. Reno v. ACLU, et al., 521 U.S. 844 (1997). The Court first found there is a compelling government interest in protecting minors from certain material and discussed the differences in First Amendment rights with respect to minors compared to adults.
The Court concluded that the CDA was overbroad and would have the effect of reaching communications among adults that is protected by the First Amendment. In further concluding that the statute was vague, the Court noted that it contained only one prong of the Miller definition, i.e., patent offensiveness, and provided no means to address community standards or scientific, artistic, or social value. The CDA also ignored the Miller requirement that the proscribed material be specifically defined. Because it acted as a blanket restriction on otherwise protected speech, it could not be considered a time, place and manner restriction.
The Court discussed several cases in which it had upheld zoning ordinances which limited adult bookstores and similar businesses to certain areas. Here, however, the CDA was a criminal statute and because of the penalties involved would not only prevent minors from viewing the material, but would have the effect of chilling permissible speech among adults. In sum, the CDA lacked "the precision that the First Amendment requires when a statute regulates the content of speech."
Justice O'Connor, joined by Chief Justice Rehnquist, concurred in part and dissented in part. Justice O'Connor wrote that zoning laws have long been upheld if they do not infringe on the rights of adults to have access to the material, but that the statute as it was written failed to adhere to this principle in some circumstances. She would have invalidated the law only in those circumstances. The opinion by Justice O'Connor failed to provide specific guidelines that would allow one to predict with certainty when such "circumstances" occur and would thus seem to ignore the potential chilling effect.
The Main Event, Round 1: The District Court
Summary of Court's ruling: A preliminary injunction was issued because the Court concluded that the plaintiffs were likely to prevail on their claim that COPA is not the least restrictive means of achieving the goal of protecting children.
In enacting COPA, Congress took heed of the Supreme Court's finding that the CDA failed to satisfy all the criteria of Miller and included the "community standards" and "literary, artistic, political, or scientific value" criteria. The current lawsuit immediately ensued and after years of litigation is even more years from final resolution.
The District Court ordered a preliminary injunction in ACLU, et al. v. Reno, 31 F.Supp. 2nd 473 (E.D. Pa. 1999). The plaintiffs asserted three main grounds for invalidating COPA: (1) that it is invalid on its face and as applied because it burdens speech that is constitutionally protected for adults, (2) that it is invalid on its face because it violates the First Amendment rights of minors, and (3) that it is unconstitutionally vague. In conjunction with the lawsuit, plaintiffs sought a preliminary injunction and it is the injunctive relief that is the subject of the opinions released by the various courts thus far in the case.
The District Court first concluded that the plaintiffs had standing despite contentions that either they would not be directly affected or that material on their websites was not harmful to minors under any interpretation of the statute. Standing existed because the plaintiff's asserted the very existence of the statute would have a chilling effect on the free speech rights of others. The Court also concluded that the strict scrutiny standard applied, rather than less stringent standards often applied to commercial speech because COPA would have the effect of driving protected speech from the marketplace of ideas.
The District Court went on to say that the "least restrictive means" includes the requirement that the benefits of a statute outweigh the burden it places on protected speech and that the free speech rights of adults cannot be reduced to allow them to read and view only that material that is acceptable for children. In assessing the benefits of the statute, the Court considered the cost of compliance and of asserting affirmative defenses, but noted the analysis did not rest on such costs, but rather on the effect the statute would have on restricting protected speech and the gain to be achieved in the goal of protecting children. The Court agreed that the effect of the statute would be to chill protected speech.
Some of the factors the Court considered was that about half of the material that would deemed harmful came from sites located in the United States, that such material was available from sites that could not be deemed commercial and from e-mail, newsgroups, and other sources not covered by the statute, and that even those sites that were covered could move offshore. The Court also considered end-user filtering software that can block sites or material. Thus, the Court concluded that the first requirement for issuing a preliminary injunction, likelihood of success on the merits had been satisfied because the evidence thus far in the record showed the statute as written was not the least restrictive means of achieving the compelling government interest. The irreparable harm requirement is always satisfied when constitutionally protected conduct is denied as would be the case if the injunction was not granted. That harm would be greater than any suffered by the government by an injunction. Finally, there can be no public interest in the enforcement of an unconstitutional law. Because the plaintiffs had met the four criteria for a preliminary injunction, the Court ordered it.
Round 2: The Court of Appeals
Summary of Court's ruling: The preliminary injunction was affirmed, but on the ground that applying community standards to determine what is harmful to minors in the context of the Internet would require application of the most conservative and strict community standard even in communities whose standards are more liberal and lenient.
On appeal by the government, the Third Circuit Court of Appeals affirmed the preliminary injunction, but on different reasoning than that employed by the District Court. 217 F.3rd 162 (3rd Cir. 2000). The Court agreed the District Court had correctly concluded that the plaintiffs had successfully met the requirements of a preliminary injunction, but concluded the plaintiffs were likely to succeed on grounds different than that the District Court relied on.
While the District Court had held the statute was not the least restrictive means because the burden on free speech outweighed any benefit to the interest of protecting children, the Court of Appeals focused on what it concluded was the statute's over breadth in its reliance on the definition of "harmful to minors" applying "contemporary community standards." The Court noted that neither the District Court nor the parties in their briefs on appeal had raised this issue, or as put by the Court had "virtually ignored" it. Nonetheless, the Court raised the concern at oral argument and based its decision on this issue.
The Court reasoned that unlike the situation in Miller and other cases dealing with printed material in which localized community standards could be determined without affecting a different community, the Internet poses different and more complex issues. There are, according to the Court, significant differences between a bookstore and the Internet that dramatically affect the analysis. A bookstore's operation, at least at the time the Miller analysis was adopted, was limited to the local community in which it is located. An Internet site, by definition, reaches worldwide.
The Court also found in a reverse corollary to courts' previous holdings that community standards were to be determined by the local community and that people in New Hampshire were not required to be subjected to material that met community standards in Las Vegas, the statute would, because of the nature of the Internet require all material to meet the community standards of the community most likely to be offended by the material. Thus, the most conservative and strict community standard would necessarily be applied even in communities where the standards were more relaxed. A site owner has no way to censor certain material or even the entire site in selected communities.
Because the statute improperly relies on community standards to define what is harmful to minors, it is overbroad and therefore in violation of the First Amendment. Following the Court's ruling, the government filed a petition for certiorari in the Supreme Court and the petition was granted.
