July was a banner month for the First Amendment and sexually oriented expression. On consecutive days, the U.S. Courts of Appeals for the 3rd Circuit issued two blockbuster decisions: one once again slamming the Department of Justice by again striking down the Child Online Protection Act; the other slamming the Federal Communications Commission for its outrageous, half-million-dollar assessment against CBS over the now infamous Super Bow" halftime show. Both cases resulted from public outcry.
COPA
Talk about a tortured history! This is COPA No. 7: American Civil Liberties Union v. Reno (E.D. Pa. 1999) (COPA I); Affirmed 217 F.3d 162 (3rd Cir. 2000) (COPA II); Vacated Sub Nom. Ashcroft v. American Civil Liberties Union (2002) (COPA III); On Remand Sub Nom. American Civil Liberties Union v. Ashcroft (3rd Cir. 2003) (COPA IV); Affirmed and Remanded Sub Nom. Ashcroft v. American Civil Liberties Union (2004)(COPA V); On Remand Sub Nom. American Civil Liberties Union v. Gonzales (E.D. Pa. 2007) (COPA VI); Affirmed Sub Nom. American Civil Liberties Union v. Mukasey (3rd Cir., July 22, 2008) (COPA VII). It's the fourth attorney general named in the case (and if it goes to the Supreme Court, which is probable, it hopefully will be the fifth).
There is not a great deal new about this opinion. It primarily boils down to the fact that filters work better than government regulations do, because - after all - everyone knows private industry can do most anything better than can government!
The centerpiece of the ACLU's objections to COPA lies in the fact that it is content-based regulation of speech. Such regulations are subject to constitutional "strict scrutiny" analysis, being presumptively invalid and constitutionally supportable only when the government can show that the regulations (1) serve a compelling governmental interest; (2) are narrowly tailored to serve that interest; and (3) are the least-restrictive means of doing so.
However, I must digress: Anti-obscenity laws unquestionably are content-based regulations of speech. Laws against child pornography have passed muster with the strict-scrutiny test because of a compelling interest in protecting children and no better way of serving it. But two, plainly content-based regulations of speech that never have been subjected to strict-scrutiny analysis are anti-obscenity laws (the Miller test) and laws against providing "harmful materials" to minors - until COPA. Approved laws against providing harmful materials to minors, using a test similar to Miller, consistently have been approved following the Supreme Court's approving in 1968 a test similar to Miller. Those laws and the Miller test are based upon totally unprincipled Supreme Court decisions - the only instances in which strict scrutiny was not applied to content-based regulations of speech.
COPA, in describing material that must be shielded from minors, essentially employs the same test that the Supreme Court has approved in laws against distributing "harmful materials" to minors - (a) with respect to minors, appeals to the prurient interest in sex when taken as a whole; (b) with respect to minors, depicts sexual activities or nudity in a patently offensive way; and (c) with respect to minors, lacks serious literary, artistic or political value. Take out "with respect to minors," and you have the Miller test. (For you technicians, this admittedly is a somewhat-truncated explanation of the Miller and Ginsberg tests.)
For starters, the COPA opinion acknowledges that much of this controversy already was decided by the prior opinions of both the appellate court and the Supreme Court in this very case (versions I-IV). Each opinion found that the statute flunks strict scrutiny if filters work better than COPA. And the trial court for the second time found that filters work better. Moreover, the Supreme Court interpreted COPA not to apply to foreign Web sites, which renders COPA almost useless in blocking minors from "harmful material." Rather than COPA, the court asked, why doesn't the government instead promote the use of filters? Good question!
Another interesting point was the trial court's finding that the "rules of payment card associations in this country prohibit Web sites from claiming that use of a credit card payment is an effective method of verifying age, and prohibit Web site owners from using credit or debit cards to verify age." This is another problem, because credit card companies give credit cards to high school kids so that they will become addicted to plastic by the time they graduate. Shame on them!
The government argued that using filters in addition to COPA was analogous to wearing a "belt and suspenders." The court shot back: "[Under] the First Amendment, if the belt works at least as effectively as the suspenders, then the Government cannot prosecute people for wearing suspenders."
There were multiple reasons for the court's striking down the statute, each reason being consistent with the factual findings of the trial court, coupled with the prior opinions of the Supreme Court and the appellate court. Hopefully, this will be COPA's last gasp. However, the reason this might not be the last of it is the proverbial "squeaky wheel." Complaints are abundant by parents who want the government to baby-sit their teenagers, keeping their supposedly innocent children from finding out about sex. Thus, expect this to press forward.
Janet Jackson
Remember who played in the 2004's "Super Bowl XXXVIII"? Remember who won? (In fact, New England defeated Carolina 32 - 29) You do, however, remember the halftime show, the heaviest use of TiVo since its invention. The FCC received more than 542,000 complaints about it, although more than 85 percent were from organized efforts, largely the Parents Television Council. And, as a consequence, the FCC slapped CBS and 19 network-owned affiliates with a total of $550,000 in "forfeiture penalties," which is FCC parlance for fines.
CBS appealed. The question was whether CBS could suffer such dire consequences for "fleeting nudity," especially for a stunt entirely and clandestinely orchestrated by Janet Jackson and Justin Timberlake.
Of minor significance is that the appellate court found that the FCC had violated its own rules. More significant was the knowledge issue, wherein it was obvious the commission was reaching, at best. There was no dispute that CBS did not have a clue that the performers were going to pull off the much-publicized "wardrobe malfunction." It was not in the script, and there was no suggestion that any such thing was planned.
The important, underlying principle is that nobody can be punished for illegal speech without some degree of fault - at least reckless. For example, the Supreme Court in 1959 held that an obscenity conviction could not stand if the statute did not require some level of knowledge - later determined to be knowledge of the "character and content of the material." Child-pornography convictions cannot stand without the defendant's having some inkling that a minor is in the movie.
The FCC proposed three theories to address the knowledge problem.
Theory No. 1 was that CBS intentionally broadcast the halftime show, which suffices for the "knowledge requirement." Nope: There must be some knowledge of the content that ultimately is found indecent, just like an alleged "child pornographer" cannot be convicted without some basis for knowing that the movie had a minor in it.
Theory No. 2 was that CBS should have taken precautions, like a video delay, to avoid such a possibility. But no such technology was then available, the court found.
Theory No. 3 was respondeat superior, which is the legal principle that holds the phone company responsible if one of its truck drivers negligently crashes into your automobile. But that principle only applies to employees, a rule that the FCC mightily tried to stretch far enough to hold CBS responsible for what the performers "intentionally" did. The court went through a painstaking analysis of the doctrine, unambiguously concluding that the FCC's theory was wrong. Timberlake and Jackson had more characteristics of independent contractors than of employees: It was a one-shot contract. They were employed by their own production companies in terms of tax withholding, etc., not CBS; the performers choreographed the performance; and they hired their own dancers and backup singers.
Interestingly, the majority of the three judges found that the standard of knowledge should be reckless. However, the concurring opinion noted that the FCC conceded the standard should be "willful," so that is what it should be.
You have not heard the end of this. Another U.S. appeals court, you may recall, tossed out an FCC "fleeting expletive" fine, a case that has been accepted for review by the Supreme Court. The Court has not discussed this subject seriously since 1978, in the notorious George Carlin "Seven Dirty Words" case.
The FCC seems obsessed with protecting children from hearing words, all of which certainly are a part of their vocabularies. This case extends that obsession to a single nine-sixteenths-of-a-second view of the human anatomy: CBS Corporation, et al. v. Federal Communications Commission (3rd Cir. 2008). Congratulations to good friend Bob Corn-Revere for an excellent win for the First Amendment!
(Clyde DeWitt is a Los Angeles and Las Vegas attorney whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online's offices or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
