Ashcroft, Atty. Gen. v. American Civil Liberties Union, et al.

Questions presented: Did the court of appeals properly bar enforcement of the Child Online Protection Act, 47 U.S.C. @ 231, on 1st Amendment grounds because it relies on community standards to identify material that is harmful to minors?

Brief

Since the mid-1990s, Congress has wanted to protect children from the startling amount of pornography and other harmful material available on the Internet.

In Reno v. ACLU in 1997, the U.S. Supreme Court struck down Congress first attempt to serve that end, the Communications Decency Act, which was passed in 1996.

The CDA prohibited Internet users from using the Internet to communicate material that, judged under contemporary community standards, would be deemed offensive and inappropriate for minors under the age of 18.

The Supreme Court found that the statute violated the 1st Amendment because its wording was vague and overbroad. It noted that because the Internet is available to a worldwide audience, under the CDA, all potentially offensive content appearing on the Internet would be judged by the standards of the community most likely to be offended by it.

Congress second attempt to regulate the dissemination of cyber-smut to minors was the Children Online Protection Act, enacted in October of 1998.

In trying to craft COPA so that it would pass Constitutional muster, Congress sought to define the statutes key terms to avoid vagueness.

It narrowed its scope to the Web as opposed to the entire Internet, the significance being that the Internet is the global networking system and the Web is a publishing forum that exists on that system.

The statute targets only Web communication designed for commercial purposes and limits its reach only to material deemed "harmful to minors" using contemporary community standards.

In an Oct. 7, 1998 speech given on the floor of the House of Representatives, Congressman Michael Oxley (R-OH) explained how the law protects children from objectionable material.

"COPA requires commercial online pornographers to take steps to restrict childrens access to adult material on the Web by requiring adult verification, such as an adult access code, PIN number, credit card numbers, or new technologies such as digital signatures when they become available," Oxley said.

The Congressman was careful to mention that the law does not infringe on the rights of adults.

"COPA does not, and I want to make this very clear, does not restrict an adults ability to access pornographic Websites and does not apply to content with redeeming value. The bill merely proposes that Web porn be treated in the same manner as the print media," he said.

The American Civil Liberties Union was less confident than Oxley that the law did not impugn the 1st Amendment rights of adults, and challenged COPAs constitutionality in the U.S. District Court for the Eastern District of Pennsylvania. Joining the ACLU in the suit were several Web publishers and free speech groups, including the Philadelphia Gay News and Condomania, which feared that adult content appearing on their sites would make them liable for prosecution under COPA, the American Booksellers Foundation for Free Expression, the Electronic Frontier Foundation, Salon Internet, Inc.

The District Court granted a preliminary injunction preventing the government from enforcing COPA.

The court interpreted the statute to impose liability on Web publishers who profited from Web sites that contained some, but not all, material that was harmful to minors. It found that the high costs of implementing age verification systems would lead Web publishers to cease publishing objectionable material and would lead them to censor more material than was necessary.

The District Court concluded that COPA imposed too heavy a burden on 1st Amendment freedoms in its attempt to shield minors from harmful Web content.

A 3rd Circuit Court of Appeals panel unanimously affirmed.

The court reasoned that, unlike the printed media, Web publishers have no control over where their material is accessed. They have no way of preventing their material from entering a community where it might be judged offensive, as the Web lacks geographical boundaries.

Under COPA, publishers would have to censor material that might be deemed harmful by the most puritan communities in any state, but might be considered permissible in more liberal communities.

The court concluded that this situation places too great a burden on 1st Amendment rights in seeking its goal of protecting children from online pornography.

"Sometimes we must make decisions that we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result," Judge Leonard Garth wrote in reiterating the sentiments of the district court judge.

"We also express our confidence and firm conviction that developing technology will soon render the 'community standards' challenge moot, thereby making congressional regulation to protect minors from harmful material on the Web constitutionally practicable," Garth wrote. "Indeed, in the context of dealing with technology to prevent the 'bleeding' of cable transmissions, the Supreme Court [in U.S. v. Playboy Entertainment Group] recognized, as do we, that 'technology may one day provide another solution.'"

On May 21, 2001, the U.S. Supreme Court granted certiorari in the case.

Almost a year later, on May 13, 2002, the Court concluded, by an 8-1 vote, that COPA was not facially unconstitutional just because it relied on "community standards" to identify material that is harmful to minors. However, in vacating the 3rd Circuit's judgment, the Court enjoined the federal government from enforcing COPA until the lower courts examined the law more fully.

In the lead majority opinion, Justice Clarence Thomas noted that community standards need not be defined by reference to a precise geographic area, but could consider the standards of the adult community as a whole, without geographic specification.

In her concurrence, Justice Sandra Day O' Connor expressed her view that "a national standard for obscenity for regulation of the Internet" might not only be constitutional but desirable. Justice Stephen Breyer concurred separately to observe that he believes Congress intended the statutory word "community" to refer to the "Nation's adult community taken as a whole, not to geographically separate local areas." He wrote: "This statement, reflecting what apparently was a uniform view within Congress, makes clear that the standard, and the relevant community, is national and adult."

Justice Anthony Kennedy offered for himself and Justices David Souter and Ruth Bader Ginsburg that he was more dubious about COPA's ultimate constitutionality than the others in the majority.

"The Court of Appeals was correct to focus on the national variation in community standards, which can constitute a substantial burden on Internet communication; and its ultimate conclusion may prove correct," wrote Kennedy. "There may be grave doubts that COPA is consistent with the First Amendment; but we should not make that determination with so many questions unanswered. The Court of Appeals should undertake a comprehensive analysis in the first instance."

Only Justice John Paul Stevens dissented outright, concluding that the term "community standards" in the context of the Internet would likely become a sword in that "the community" cannot help but rid the entire Internet of material it finds objectionable.

Stevens reasoned that the Internet is not like any other media. Regarding other media, "[t]hose who abhor and those who tolerate sexually explicit speech can seek out like-minded people and settle in communities that share their views on what is acceptable for themselves and their children," Stevens wrote. "This sorting mechanism, however, does not exist in cyberspace; the audience cannot self-segregate. As a result, in the context of the Internet this shield also becomes a sword, because the community that wishes to live without certain material not only rids itself, but the entire Internet of the offending speech."

Attorneys: For Ashcroft (U.S. Attorney General):THEODORE B. OLSONSolicitor GeneralCounsel of RecordSTUART E. SCHIFFERActing Assistant Attorney GeneralEDWIN S. KNEEDLERDeputy Solicitor GeneralIRVING L. GORNSTEINAssistant to the Solicitor GeneralBARBARA L. HERWIGJACOB M. LEWISCHARLES SCARBOROUGH