Last year, the United States District Court for the Eastern District of Pennsylvania entered a preliminary injunction against enforcement of COPA (the Child Online Protection Act). ACLU v. Reno, 31 F.Supp.2d 473, 481 (E.D.Pa.1999). COPA, you will recall, was enacted on the heels of the United States Supreme Court's opinion striking down its successor, the CDA (Communications Decency Act of 1996). ACLU v. Reno, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). Now, the United States Court of Appeals has affirmed the preliminary injunction against the enforcement of COPA. ACLU v. Reno, ___ F.3d ___, 2000 WL 801186 (3rd Cir., June 22, 2000).
The case now will return to the District Court for a full trial during which time the law will remain "on hold" - unless, that is, the Supreme Court intervenes first. Notably, Supreme Court intervention is unusual in the current procedural posture of this case because, historically, the Court does not normally decide constitutional challenges to statutes until there has been a final trial. "Normally" is emphasized here because the Supreme Court of late has exhibited a tendency to depart from standard operating procedure when the result will hurt erotic speech.
You will recall that the CDA was railroaded through Congress in 1996 as part of the largest overhaul of the nation's communications laws in over 60 years. No president would ever veto a bill so sweeping or which was a result of so much hard work and compromise involving Congress and the White House; so, President Clinton predictably signed the Communications Reform Act of 1996 into law, including the CDA.
The component of the CDA involving credit-card blocking - plainly the most controversial - never took effect because it was the subject of an emergency injunction which later became the permanent injunction which was affirmed by the Supreme Court when it invalidated the statute in 1997.
Members of Congress and other do-gooders who had made a career of flapping their jaws about how the Internet was a "red light district" and a "sewer" were uniformly disgruntled about the Supreme Court's decision, all having a panic attack because a minor (or, for that matter, an adult) might get to see "you-know-what" over the Internet. Predictably, wheels were immediately set into motion to create an offspring of the CDA which they all hoped would address the Supreme Court's objections to it. Thus, COPA.
The structure of COPA is much like the CDA; it makes it illegal to make harmful material available to minors over the Internet, but provides defenses, in the case of COPA, for a verified credit card or some other password situation, such as an adult verification service (e.g., AgeCheckSM, Adult Check�, and others).
In its attempt to rectify the Supreme Court's objection to the CDA, Congress defined in COPA what material required credit card blocking in terms of materials which are "harmful to minors," a definition which most states have embraced in defining what you can't sell to minors, and which has been for the most part approved by courts.
The "harmful to minors" definition came from a 1965 Supreme Court case called Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). There, the Court in essence said that, despite what some seemed to believe, the First Amendment did not apply only to adults. There, the Court loosely formulated a test which was akin to the obscenity test, except it was tailored to minors. That is, the question of whether something was too sexy to be disseminated to a minor was a function of community attitudes about such things, except it was a function of community attitudes as to minors. The standard which since has been adopted by most states with respect to what is "harmful to minors" is the one that was approved in a case which followed Ginsberg, American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990). The court there simply approved a version of the obscenity test which was modified to the extent that it qualified the applicable "community standards" to those found in the adult community but concerning what is appropriate for minors.
What Congress did in COPA was an attempt to capitalize on the fact that state statutes prohibiting the dissemination of "harmful materials" to minors had, for the most part, withstood constitutional scrutiny. The "indecency"-type approach which CDA followed prohibited dissemination to minors of much material which would have landed on the side of the blurry line established by Ginsberg and Webb with materials to which minors have a constitutional right to access. COPA, on the other hand, applies only to materials which are "harmful to minors," which is defined in a manner apparently consistent with Ginsberg and Webb, as "any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that-
"(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, that such material is designed to appeal to or panders to the prurient interest;
"(B) depicts, describes, or represents, in a patently offensive way with respect to minors, an actual or simulated sexual act or sexual contact, actual or simulated, normal or perverted sexual acts, or a lewd exhibition of the genitals or female breast; and
"(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."
So, here we go on community standards again. Any material falling under the above definition - which is just as murky as the Miller obscenity test - is subject to the COPA regulations. The practical and likely intended effect of this, of course, is that it reduces an unfiltered Web site to the lowest common denominator - the most conservative community - since, unlike books, magazines and videotapes which are shipped to a particular place or broadcast stations (whether cable or over-the-air) which have a defined geographic market, the Internet goes everywhere. So, figuring out what is "harmful to minors" really boils down to material to which the above definition applies in the most conservative place. This could be anything much racier than the Sports Illustrated Swimsuit Issue if the government wants to play hardball with this. (Most of you would probably not be interested in knowing that you will win if you are prosecuted.) Unlike the record-keeping and labeling requirements, where there are clear definitions, "harmful to minors" is hopelessly vague.
So, if states can have valid statutes and ordinances prohibiting sale of "harmful materials" to minors at "brick and mortar outlets," there seems no reason why Congress shouldn't be allowed to pass a similar statute about the Internet, which is essentially what it did with COPA. Community standards work for obscenity under Miller, why not for "harmful materials" under COPA? After all, if the court recognizes the impossibility of applying the "community standards" concept to the Internet (an issue that has been raised by this column more than once), doesn't that dismantle the Miller test for adult obscenity? Well, all of you anti-Miller folks (which is pretty much everyone who reads this column except the people at the Department of Justice and those "family value" people, who read it for espionage purposes), check this out:
In addressing the community standards issue, the Third Circuit's opinion upholding the preliminary injunction against COPA found:
"Despite the government's assertion, each medium of expression must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems... In considering the unique factors that affect communication in the new and technology-laden medium of the Web, we are convinced that there are crucial differences between a 'brick and mortar outlet' and the online Web that dramatically affect a First Amendment analysis.
"Unlike a 'brick and mortar outlet' with a specific geographic locale, and unlike the voluntary physical mailing of material from one geographic location to another, as in Miller, the uncontroverted facts indicate that the Web is not geographically constrained... Geography... is a virtually meaningless construct on the Internet. Indeed, and of extreme significance, is the fact, as found by the District Court, that Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users. As soon as information is published on a Web site, it is accessible to all other Web visitors... Current technology prevents Web publishers from circumventing particular jurisdictions or limiting their site's content from entering any [specific] geographic community. This key difference necessarily affects our analysis in attempting to define what contemporary community standards should or could mean in a medium without geographic boundaries."
Someone finally got it! The court went on to note:
"Our concern with COPA's adoption of Miller's 'contemporary community standards' test by which to determine whether material is harmful to minors is with respect to its overbreadth in the context of the Web medium. Because no technology currently exists by which Web publishers may avoid liability, such publishers would necessarily be compelled to abide by the 'standards of the community most likely to be offended by the message... even if the same material would not have been deemed harmful to minors in all other communities. Moreover, by restricting their publications to meet the more stringent standards of less liberal communities, adults whose constitutional rights permit them to view such materials would be unconstitutionally deprived of those rights. Thus, this result imposes an overreaching burden and restriction on constitutionally protected speech."
But, wait! If the "community standards" approach in the context of the Internet is no good when it comes to "harmful materials," wouldn't the same reasoning necessarily invalidate the Miller v. California obscenity test, since it includes the exact same language, except that it is applied to adult standards, rather than those for minors? You would think so. Well, remarkably, so did the court:
"Our holding in no way ignores or questions the general applicability of the holding in Miller with respect to 'contemporary community standards.' We remain satisfied that Miller's 'community standards' test continues to be a useful and viable tool in contexts other than the Internet and the Web under present technology. Miller itself was designed to address the mailing of unsolicited sexually explicit material in violation of California law, where a publisher could control the community receiving the publication. Miller, however, has no applicability to the Internet and the Web, where Web publishers are currently without the ability to control the geographic scope of the recipients of their communications." [Emphasis added]
So, what this court seems to be saying is that Miller cannot be constitutionally applied in the context of the Internet except where the locale of the recipient can be ascertained. And that is impossible under current technology, so said the court (in fact, it is impossible; a recipient can tell you his or her locale, but there is no way to verify it.
But Miller remains good for "brick and mortar" businesses, so it still stands to curtail expression. Right? Well, let's see; we can log onto the Internet and dial up magazines (such as this one), newspapers, photo galleries, motion pictures (not very good quality now, but it's improving), music - pretty much anything except sculptures. And the technology facilitating this downloading is only improving. And if the Miller test can be applied to "brick and mortar" businesses but not the Internet, don't you know where adult distributors will turn?
If your background is from the electronics world, this probably all makes complete sense. But if, instead, you were a veteran of the adult media industry - film, video and/or print - and thereby remember the late-1980s Operation Woodworm (federal criminal prosecutions of most of the Los Angeles adult video distributors), the mid-1980s Operation Postporn (same, but that time mail order companies) and perhaps also the late 1970s Operation MiPorn (federal criminal prosecutions in Miami of most of the major adult distributors) - you probably are hyperventilating by this point. After all, the court fell one step short of recognizing the problems that mail-order retailers and national distributors have recognized for years - even if you know where you are sending something, how can you possibly know the community standards of the whole country? Well, sit down and have a glass of water. And once you have regained your equilibrium, consider the broader picture:
The challenge to COPA will return for trial in the District Court, which likely will follow the lead of the Court of Appeals in terms of the "community standards" analysis (actually, it is required to follow it). The ACLU should win again, and on the same "community standards" ground. This case seems bound for the Supreme Court, although not for a couple of years. But the specter of the Supreme Court fielding a case where the lower courts have held that the federal government is powerless to regulate obscenity over the Internet is frightening, particularly with the possibility of President Bush II and the composition of the Court changing for the worse.
So, stand by and fasten your seat belts! This could impact everyone.
(Clyde DeWitt is a partner in the Los Angeles, California 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 over the Internet 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.)
