One of the most enduring of Greek myths is that of Sisyphus, the avaricious and deceitful King of Corinth. So deceitful was he that when Death (Thanatos) came to take him to the underworld, Sisyphus bound Thanatos in chains and kept him locked in a closet. With Thanatos hidden away, no one died, a disruption in the natural order that dismayed the gods. Ultimately, Ares (the Greek god of war) came down from Olympus, freed Thanatos, and forcibly put Sisyphus in his custody. (Sisyphus managed to cheat Death one more time, but that's another story.)
The gods devised a suitably devious punishment for Sisyphus's various misdeeds: He was condemned to push a great boulder up a hill, with the understanding that if he could push the boulder over the crest, his punishment would end. But each time, just as he gets the boulder to the top of the hill, the boulder slips from his grasp and rolls to the bottom of the hill, where he must start again.
Similarly, Congress has been trying for the last decade to push Internet pornography legislation up the steps of the United States Supreme Court, but each time it reaches the top step, the Court kicks it back down again. The fact that one small piece of legislation (requiring filters on library and school computers) has slipped past the Court and down the other side only makes the continued rejection of everything else all the more frustrating. But like Sisyphus, conservative legislators are condemned by their morals and their constituents to keep pushing bills both old and new up the marble steps.
There are two court proceedings that will have a tremendous bearing on how hard Congress will continue to work on Internet pornography legislation. The first, involving a challenge to the Child Online Protection Act, was originally filed in the fall of 1998 and may ultimately be headed for its third visit to the country's highest court. The second, a high profile federal prosecution of Extreme Associates, has been in the courts for less than a year, but could fundamentally alter the landscape of obscenity law in the United States.
Spawn of CDA
When it was first adopted by Congress and signed by President Clinton in the fall of 1998, the Child Online Protection Act was often referred to as "Son of CDA," or "CDA II." There was good reason for the nicknames; COPA was a specific response by Congress to the U.S. Supreme Court's 1997 opinion striking down the Communications Decency Act. The Supreme Court unanimously agreed that Congress's effort in the CDA to make a felony of transmitting indecency across the Internet was an unconstitutional infringement of free speech.
"We are persuaded," Justice Stevens wrote, "that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another."
Noting the Court's emphasis on the impact the CDA had on adult speech, Congress set about drafting a law that criminalized the distribution of material that is harmful to minors. The bill was specifically modeled on similar laws enacted in a number of different states around the country, which limit the sale of adult materials to children and require magazine sellers to use special bags or boards to prevent minors from seeing sexually explicit covers. The chief drafter of COPA, former Senator Dan Coats (R. -Ind.), said at the time that the Court's CDA decision was used as a guide for writing the new legislation.
The primary focus of COPA is to require commercial pornography sites to implement some type of screening tool to limit access to adults. Specifically, COPA prohibits an individual or entity from "knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, making any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors."
Under COPA, whether material published on the Web is "harmful to minors" is governed by a three-part test, each element of which must be satisfied before a judgment can be sustained:
(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
(C) taken as a whole, lacks serious, literary, artistic, political, or scientific value for minors. 47 U.S.C. § 231(e)(6) (emphasis added).
Individuals who violate the provisions of COPA could be fined $50,000 and jailed for up to six months. In addition, if an individual is convicted of intentionally violating COPA, he or she can be fined up to $50,000 per violation, with each day counting as a separate violation. A convicted COPA violator can also be assessed a civil fine of up to $50,000 per day.
The law creates an affirmative defense for webmasters who restrict access to individuals under age 17 by "requiring use of a verified credit card, debit account, adult access code, or adult personal identification number or in accordance with such other procedures as the Commission [on Child Online Protection] may prescribe."
Injunction junction
When COPA was initially passed in 1998, some legal scholars, including most notably Lawrence Lessig, suggested that Congress might in fact have succeeded in drafting a constitutional law. In an interview with Carl Kaplan of The New York Times, Lessig noted that the Court had endorsed the "harmful to minors" language used in various state laws, and he also said the COPA's narrow focus on the Web would make it more defensible.
The day after President Clinton signed COPA into law, a coalition of civil liberties groups, free speech organizations, commercial websites, and booksellers filed suit against COPA. Less than a month later, U.S. District Court Judge Lowell Reed (Philadelphia) issued an injunction against the law. After taking extensive testimony, Judge Reed, albeit reluctantly, made the injunction permanent on February 1, 1999.
"This Court and many parents and grandparents," Judge Reed wrote, "would like to see the efforts of Congress to protect children from harmful materials on the Internet to ultimately succeed and the will of the majority of citizens in this country to be realized through the enforcement of an act of Congress."
"However," the Judge continued, "the Court is acutely cognizant of its charge under the law of this country not to protect the majoritarian will at the expense of stifling the rights embodied in the Constitution. ... Despite the Court's personal regret that this preliminary injunction will delay once again the careful protection of our children, I without hesitation acknowledge the duty imposed on the Court and the greater good such duty serves. Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection."
The Justice Department had the option of appealing the issuance of the injunction or proceeding to trial. On the last possible day, the DOJ elected to file an appeal with the 3rd Circuit. To everyone's surprise, the Appeals Court largely ignored the District Court's opinion and upheld the injunction on far broader terms than Judge Reed. Most significantly, the 3rd Circuit explicitly held that the traditional tool for determining if something is obscene, known as the Miller test, "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." The attempt to build COPA around the Miller test, the 3rd Circuit concluded, made the statute unconstitutionally broad.
Free speech vs. the online porn "menace"
This time, the Justice Department wasted no time filing an appeal; it quickly asked the Supreme Court to review the appellate decision, and the Court agreed. In May 2002, the Supreme Court overturned the Appeals Court, saying that COPA's use of the Miller test did not make it unconstitutional. However, the Court noted that the law had other potential problems and sent it back to the 3rd Circuit for additional review.
The appeals court heard additional arguments in the fall of 2003 (five years after COPA's adoption) and again ruled in favor of the plaintiffs, saying among other things that the law unconstitutionally would restrict access by adults to material suitable for adults. Once again, the Justice Department asked the Supreme Court to review the 3rd Circuit decision.
The spring 2004 arguments before the Supreme Court were spirited. Speaking on behalf of the plaintiffs, ACLU staff attorney Ann Beeson said that, "The government has a range of more effective and less intrusive tools to meet the same objective [i.e., protecting children]." In particular, she noted, parents can purchase and install filter programs that allow them to control the material to which their children have access.
Speaking on behalf of Congress, U.S. Solicitor General Ted Olson disagreed that filters are effective tools and argued that COPA would more effectively protect children. In particular, he argued that the burden of protecting children should fall on webmasters and not parents. COPA is needed, Olson said, to fight the "menace" of "pervasive and essentially unavoidable Internet pornography that inflicts substantial physical and psychological damage on children."
Given the range of questions posed by the various justices during oral arguments, it was clear that however the Court decided, there was little chance that the decision would be unanimous. It wasn't. In fact, the Court upheld the 3rd Circuit's decision by the narrowest of margins, 5-to-4, and with an unusual lineup of justices. The opinion was delivered by the moderate-to-conservative Justice Anthony Kennedy; voting with him were three of the Court's more liberal members, Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg, and one of the Court's most conservative members, Justice Clarence Thomas. Disagreeing with the decision were two stalwart conservatives: Chief Justice William Rehnquist and Antonin Scalia; a confirmed moderate, Justice Sandra Day O'Connor; and the moderate-to-liberal Justice Stephen Breyer.
Finding for filters
Much of Justice Kennedy's decision focused on the issue of whether COPA is in fact the least restrictive means for the government to achieve its goal of protecting children from online pornography. The majority concluded that filters would be preferable:
"Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed."
Justice Kennedy also noted that COPA will block less objectionable material than filters, because COPA does not apply to websites outside of the United States. By contrast, filtering software blocks incoming material at the site where the material is received, regardless of the location from which it was originally sent.
Morality not a compelling state interest
The Supreme Court's decision did not end the battle over COPA. Although the injunction that Judge Reed issued in 1999 remains in place, the Court sent the litigation back to the trial court so that the lower court can take evidence on whether software filters can in fact be an effective means of blocking child access to adult materials. According to Karen Stewart, one of the Justice Department attorneys who has been working on the COPA litigation, the case will not actually go trial until June 2006.
"Between now and then," Stewart said in a recent interview, "there will be a period of discovery, which isn't scheduled to end until March 2006." And even if the trial court rules that COPA is better than filters, the appellate process could easily stretch a final decision on the merits of COPA out towards the end of this decade.
Well before COPA is resolved, the obscenity landscape may be fundamentally altered by the government's prosecution of the edgy and often gruesome adult video company, Extreme Associates. The California company and its two married owners, Rob Zicari and Janet Romano, were indicted by a Pittsburgh grand jury on August 6, 2003, after a postal inspector downloaded video clips and ordered videos from Extreme Associates. The defendants' attorney, H. Louis Sirkin, moved to dismiss the case, and after hearing oral arguments in November 2004, U.S. District Court Judge Gary Lancaster agreed.
In a 45-page decision, Judge Lancaster concluded that "the government can no longer rely on the advancement of a moral code, i.e., preventing consenting adults from entertaining lewd and lascivious thoughts as a legitimate, let alone a compelling, state interest." The judge based his decision in large part on a 2003 U.S. Supreme Court decision, Lawrence vs. Texas, in which the Court struck down a Texas law criminalizing homosexual sodomy.
"Because [Lawrence] involved two consenting adults engaged in sexual activity in the privacy of their own home and not minors, persons who might be coerced or injured, public conduct or prostitution," Lancaster wrote, "the [Supreme] Court found that no state interest – including promoting a moral code – could justify the law’s intrusion into the personal and private life of the individuals involved." Similarly, Lancaster concluded that since Extreme Associates took steps to prevent access by either children or "unwitting" adults, the outright ban embodied in the federal obscenity laws is unconstitutional.
Unlike with COPA, the Justice Department wasted no time appealing Judge Lancaster's decision. Ironically, the appeal will be heard by the 3rd Circuit, the panel of judges that expressed such skepticism about the continued viability of the Miller test. The decision to appeal poses some risk for the government; if the 3rd Circuit upholds Judge Lancaster's decision, it will raise even more serious questions about the continued viability of obscenity laws as applied to adults. The Department of Justice would undoubtedly appeal again to the U.S. Supreme Court if necessary, but given the recent decision in Lawrence, there is at least a reasonable chance that the Court would uphold the dismissal. On the other hand, if Extreme Associates is on the losing side of any of the appeals, then it can still try to prevail at trial. It is unlikely that a final decision will be handed down in that case for years to come.
Frederick Lane is co-founder of Tech Law Seminars, an in-house training and seminar company focusing on legal and social developments sparked by new technology. Lane is the author of "Obscene Profits" (Routledge 2000) and "The Naked Employee" (Amacom 2003). He also serves as an expert witness in cases involving pornography, obscenity, and computer forensics.
