This month's topic became certain on the morning of May 13, 2002, when the Supreme Court decided the so-called COPA case, Ashcroft v. American Civil Liberties Union, ___ U.S. ___, 122 S.Ct. 1700 (May 13, 2002).
This report begins with a message to those who hoped that the Supreme Court somehow would find that, because the Internet is a unique medium of communications, it should be altogether exempt from obscenity regulations. Not!
Returning to reality, there are two aspects to this new COPA decision. Each is important.
The first facet is the practical impact of the decision: Is the COPA law now enforceable? Remarkably, it is not. The Supreme Court left in place the injunction against COPA, meaning that the federal government has yet to have an opportunity to require credit card or password protection for adult materials over the Internet after over six years of trying.
The second angle, which is considerably more important in the long run, is the ultimate impact of the COPA decision. For the first time, the Court made clear the fact that the test for what is "harmful to minors" is, with the exception of a "for minors" caveat, identical to the test for what is, for adults, legally "obscene," and therefore not protected by the First Amendment. Thus, the "community standards" quagmire will be of equal magnitude in evaluating obscenity for consenting adults.
Where Things Stand
Looking to the practical component of the COPA decision, the government again has been stymied from enforcing credit card or password blocking requirements against adult Internet sites. You may or may not recall that this all started with the Communications Decency Act of 1996. The CDA - the "Exon Amendment" - was a relatively small part of the Telecommunications Act of 1996, the most comprehensive overhaul of communications regulations since 1934.
Described in general terms, CDA required that a Web surfer establish his or her status as an adult by putting up a credit card before being allowed access to defined erotic expression. The law was enjoined before it took effect; and the Supreme Court, on the rocket-review schedule unique to the CDA, struck down that portion of the law because it had the effect of insulating minors from speech to which they enjoyed a constitutional right to access. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
Congress responded with COPA, which had a comparable blocking requirement, this one modeled after the "harmful to minors" tests that had been approved by a number of courts including, arguably, the Supreme Court. The ACLU went back to work, again garnering an injunction prior to any enforcement. There being no "rocket docket" provision in COPA, the government's appeal progressed on a more conventional timetable and route. Thus, after briefing and argument, the United States Court of Appeal for the Third Circuit affirmed the preliminary injunction, broadly striking down COPA.
A divided Supreme Court, as explained below, has now held that the Third Circuit went too far. However, the Court did not uphold COPA. Rather, the Court sent the case back to the Third Circuit for further consideration, in light of its splintered opinions.
Because the Supreme Court left the preliminary injunction in effect, the government's hands remain tied in its efforts to require adult Websites to use credit-card verification to restrict access by minors. This is over six years after Congress first enacted its CDA legislation attempting to implement such a requirement.
The Bigger Picture
The broader impact of the COPA decision involves defining the line between what erotica is protected by the First Amendment and what can land you in jail. As it turns out, the three-part test is almost identical, whether minors or adults are involved. With respect to the relevant age group, e.g. , adults [or minors], erotic materials are protected by the First Amendment unless the censor can establish:
"(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]."
The above [with "minors" modification in brackets] is taken from COPA. Although other incarnations of the obscenity/harmful materials tests utilize slightly different language, the differences are immaterial at this level. These two tests come from Supreme Court decisions handed down between 1957 and the late 1970s, and now have been materially merged. Because of that, the three-part, redux series of Legal Commentary articles currently running in Adult Video News is worth reviewing. As you will see, the bewildering Miller test - which defines the line between erotica that is constitutionally protected and that which can be criminalized even if only consenting adults are involved - has been adopted, subject to the "for minors" modification, for determining what erotica is protected for minors.
The critical issue arises from the aspect of the tests requiring that the prurient appeal and patent offensiveness components be a function of contemporary "community standards." What community? The Ginzberg and Miller tests were born and raised in a brick-and-mortar world. Then, the "community" was wherever the store was found. In mail order, the community was where either the sending or receiving mailbox was found. Broadcast waves could go only so far, and because there were a limited number of frequencies, the regulation of over-the-air obscenity was subject to a different analysis.
By the time the Word Wide Web emerged, the Miller test had been solidly applied to federal obscenity laws and those of most states, and the New York "harmful to minors" test had been adopted in probably every state. The Web, however, changed the environment in which the "community standards" component of the test would apply.
The COPA decision comes less than a month after the decision in Ashcroft v. Free Speech Coalition, ___ U.S. ___, 122 S.Ct. 1389 (April 16, 2002), which, in holding unconstitutional the simulated child pornography law, the Court relied heavily upon the government's ability to attack simulated child pornography under general obscenity statutes, i.e. , using the Miller v. California standard.
In the CDA decision - Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) - the Court struck down the original blocking requirement because the definition of "indecent" - the materials for which the CDA required screening - expanded too much upon the definition articulated by the Court some 30 years earlier in Ginsberg v. State of New York, 390 U.S. 629 (1968). Importantly, the court in Reno held:
"In four important respects, the [New York] statute upheld in Ginsberg was narrower than the CDA. First, we noted in Ginsberg that 'the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.' Under the CDA, by contrast, neither the parents' consent - nor even their participation - in the communication would avoid the application of the statute. Second, the New York statute applied only to commercial transactions, whereas the CDA contains no such limitation. Third, the New York statute cabined its definition of material that is harmful to minors with the requirement that it be 'utterly without redeeming social importance for minors.' The CDA fails to provide us with any definition of the term 'indecent' as used in � 223(a)(1) and, importantly, omits any requirement that the 'patently offensive' material covered by � 223(d) lack serious literary, artistic, political, or scientific value. Fourth, the New York statute defined a minor as a person under the age of 17, whereas the CDA, in applying to all those under 18 years, includes an additional year of those nearest majority." 521 U.S. at 865-66 (citations and footnotes omitted).
Congress enacted COPA in response to that criticism, incorporating in it most of the Ginsberg definition of what is "harmful to minors." The Supreme Court has now declined to adopt the government's position that what it described in oral argument as "the so-called Ginsberg-Miller test" was entirely workable in the context of the Internet. However, it would not go so far as did the Third Circuit, which found that the Ginsberg test was unworkable in the context of the Internet because the Webmaster had no control over where the signal went, entirely striking down COPA in the Internet context. The only logical extension of the Third Circuit's wholesale dismantling of the community-standards component of COPA would have been to entirely prohibit adult obscenity prosecutions of Webmasters, at least outside of their resident communities. Clearly, the Court would not go that far.
The COPA case returns to the Third Circuit for further evaluation. Having reviewed the briefs, oral argument transcript, and opinions in COPA, it is clear that there now is universal recognition that the "community standards" component of the test for what is protected by the First Amendment is the same for minors as for adults. The tough issue is defining the "community." Some factions seek applications of the standard of the most sensitive community, a standard which would give the most conservative communities a "veto" of sorts and allow the Bible Belt to regulate the standards of the entire nation. Other factions seek to simply establish one national community standard, which poses difficulties because, despite instructions to the contrary, jurors would tend to apply their own communities' notions of what has prurient appeal and what is offensive.
Prepare for the next chapter of the battle between free speech and censorship. What the courts below - and probably, later, the Supreme Court - do with the definition of "community" for COPA will likely apply to adult obscenity laws, as well.
Clyde DeWitt is a partner in the Los Angeles, California-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 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.
