As they were boarding up the Supreme Court Building for the summer recess on the last day of the term, the Court issued its long-awaited decision in the COPA case. It was a substantial victory in one sense, but something of a fizzle in another.
COPA, of course, prohibits allowing access of adult Websites to minors, allowing a safe harbor if access to the site requires a valid credit card or a password. That requirement has been the subject of what now seems to be endless litigation, which is not yet over.
Congress’ first attempt at this was some eight years ago. It came from the Communications Decency Act (CDA), also known as the “Exon Amendment,” a part of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, which represented the most sweeping reform in telecommunications law in history. The CDA, much like COPA, prohibited allowing minors access to any “indecent transmission” or “patently offensive display” unless a credit card number was produced. A federal district court blocked enforcement of that portion of the law before its effective date; and, according to a special provision in the CDA, the case went directly to the Supreme Court, which agreed, holding the law unconstitutional for a variety of reasons. American Civil Liberties Union v. Reno, 29 F.Supp. 824 (E.D. Pa. 1996), Affirmed sub nom. Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). The following year, Congress attempted to cure the constitutional shortcomings in the legislation with the Child Online Protection Act, or “COPA”. That new version of the regulation more precisely and less broadly defined what minors were not allowed to see, and also limited coverage to commercial sites, among other changes designed to accommodate the Supreme Court’s rejection of the old law.
The American Civil Liberties Union once again swung into action, garnering a preliminary injunction before COPA became effective. Rather than wait for the final trial, the government appealed the preliminary injunction to the United States Court of Appeals for the Third Circuit, which upheld it. American Civil Liberties Union v. Reno, 31 F.Supp.2d 473 (E.D. Pa. 1999), affirmed, 217 F.3d 162 (3rd Cir. 2000).
Now, a bit of Supreme Court jurisprudence: Remember that, ordinarily, the Court is allowed to pick and choose what cases it does and does not want to hear. The Court receives thousands upon thousands of petitions every year, but only actually hears roughly 70-80 cases. Using its discretion, especially given its case load, the Court almost never accepts review of a case that is not over. It can, but rarely does. The reason is that the trial of the case might obviate the need for Supreme Court review at all.
But in the case of COPA, the Supreme Court has reviewed the preliminary injunction not once, but twice. The first time, the Court kicked the case back to the Court of Appeals, essentially finding that it may or may not have reached the correct result, but its reasoning was faulty. When the Court of Appeals took a second look at the case, it reached the same result, albeit for different reasons, keeping in place the preliminary injunction. Then, in the face of its general practice of not reviewing preliminary injunctions, the Supreme Court agreed to again review the same preliminary injunction. American Civil Liberties Union v. Reno, 31 F.Supp.2d 473 (E.D. Pa. 1999), affirmed, 217 F.3d 162 (3rd Cir. 2000) vacated sub nom. Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) on remand, 322 F.3d 240 (3rd Cir. 2003) certiorari granted, ___ U.S. ___, 124 S.Ct. 399, 157 L.Ed.2d 274 (2003).
There was a great deal of buzz about this case because of its potential ramifications. That was owing to the fact that the definition of material “harmful to minors” – which is what the COPA law says must be insulated from them by requiring a password or valid credit card – was identical to the Miller definition of obscenity for adults, except it qualified the three prongs by adding “with respect to minors.” One of the issues was whether the notion of “community standards,” which is what measures both the prurient-appeal prong and the patently offensive prong of both tests, was workable in cyberspace. If not obvious, the significance of that arises from the identical requirement in the Miller test. So if COPA went out the window on that basis, so would Miller and so would General Ashcroft’s war on adult obscenity that he claims to be cooking up. Accordingly, Legal Commentary was at the ready, prepared to consume half of this issue of both magazines covering the demise of adult obscenity prosecutions. Nope!
Rather than reach that core issue, however, the Court simply held that there was enough likelihood that the statute was unconstitutional that the trial court did not abuse its discretion in issuing an injunction pending trial. The Court particularly noted that five years had elapsed since the hearing, during which there had been many developments in rapidly changing Internet technology that surely the trial court would take into consideration at arriving at a final judgment in the case.
In allowing the preliminary injunction to stand, the court focused on the issue of whether filtering was a more effective means of keeping minors out of adult sites than was COPA. That was of particular significance because of the evolution of such technology in the last half-decade, and the Court was not factually equipped to deal with that. Facts, you see, are for trial courts.
The decision was 5-4; and the division of justices was probably the most surprising aspect of the entire case. Justice Thomas, appointed by the first President Bush and normally on the side of government in most areas, sided with the majority, although he did not write a concurring opinion (as a rule, one of the justices is assigned to write an opinion for the majority, but a concurring or dissenting opinion is written only when a justice decides to put pen to paper). But Justice Breyer, appointed by President Clinton and expected to be sympathetic to the Bill of Rights, wrote a dissenting opinion. Neither the majority nor Justice Breyer’s dissent, however, addressed the issue of whether the new environment of cyberspace rendered the “community standards” concept – necessary both to COPA and to all of the adult obscenity prosecutions promised by the current Justice Department – constitutionally unworkable.
Justice Stevens’ concurring opinion, with which Justice Ginsburg agreed, however, took dead aim at both:
“Criminal prosecutions are, in my view, an inappropriate means to regulate the universe of materials classified as ‘obscene,’ since the line between communications which ‘offend’ and those which do not is too blurred to identify criminal conduct.”
Thus, at least two members of the Supreme Court agree with the logical proposition that obscenity cannot be regulated by criminal prosecutions because the test is too vague. Notably, when Miller was decided in 1973, four members of the Court took that position in dissent.
The case will now go back to the district court in Philadelphia for what certainly will be a war. Significant is the fact that the case was tried the first time against the Janet Reno Department of Justice. This time, assuming the trial begins relatively promptly, the other corner of the ring will be occupied by a DOJ led by John Ashcroft, whose department now apparently believes that God has issued some commandment that there should be no discussion about or interest in sex, the only exception being privately between church-married, opposite-sex loved ones, and then only for the purpose of procreation, and that it is the government’s place to throttle anyone running afoul of that rule. Expect the DOJ’s courtroom defense of COPA to be much akin to the invasion of Iraq. Ashcroft v. American Civil Liberties Union, ___ U.S. ___, 2004 WL 1439998 (June 29, 2004).
One final note: Assuming that this case comes back to the Supreme Court after trial – a virtual certainty – it will be the fourth trip for this issue. That must be some kind of a record.
Clyde DeWitt is a partner in the Los Angeles, Calif.-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online’s offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025, or at [email protected]. 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.
