The United States Supreme Court has accepted review of the United States Court of Appeals' landmark decision striking down the component of the Child Online Protection Act that has the impact of requiring a verified credit card before displaying material "harmful" to minors on a Website. (AVN Online, Legal Commentary, October, 2000). The argument date has not been set but, according to the Court's customs, the case should be decided by spring of 2002. American Civil Liberties Union v. Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999), Aff'd., 217 F.3d 162 (3rd Cir. 2000), cert. granted sub nom. Ashcroft v. American Civil Liberties Union, ___ U.S. ___, No. 00-1293, 2001 W.L. 167434, 69 U.S.L.W. 3557 (May 21, 2001).
Without rehashing the nuances of the underlying litigation and COPA that appeared in previous articles, there are two particularly noteworthy aspects of this event. First, the Court has accepted review of a case where the ruling of the court below was of a preliminary injunction; a rarity. Second, this case takes Miller v. California head-on.
With almost no exceptions, the Supreme Court decides which cases it will decide. Of the thousands upon thousands of petitions for certiorari - petitions begging the Court to exercise its discretion and hear a case - that are filed every year, less than 100 of them result in full briefing, oral argument, and a signed opinion. Most of the petitions result in a one-sentence order, "The petition for certiorari is denied." Thus, the Court's grant of any petition for certiorari is a very meaningful event for those involved in a field of endeavor that might be touched by the result.
Significantly, over the last 15 years or so, the Court has reduced the number of cases that it hears by roughly 50 percent, while the number of petitions for certiorari filed has approximately doubled. These days, the chances of a petition for certiorari garnering a full Supreme Court hearing are in the neighborhood of one in 100.
Because the Court is so discriminating in accepting cases for review, it rarely hears cases that have any loose ends to tie up. For example, the Court will not hear a case where the losing party still has appellate rights remaining. Correctly, the Court should not consume its precious resources hearing a case until the litigant has exhausted all of its rights in the lower courts having jurisdiction.
Similarly, the Court rarely agrees to hear a case that is not finished. Here, the Court has granted certiorari in a case where the Court of Appeals reviewed a preliminary injunction. There has not yet been a trial, which means that there is no "final judgment" (which is what a court issues at the end of a final trial). In the words of a leading authority on the subject, and quoting now-Chief Justice Rehnquist, granting of certiorari "before judgment is, of course, 'an extremely rare occurrence.'" According to the Supreme Court rules, such relief is available only "upon a showing that the case is of such imperative public importance as to justify deviation from the normal appellate practice and to require immediate determination by this Court." Such cases have been described by the Court as those "of peculiar gravity and general importance."
In cases like this one, where the Court of Appeals affirmed a preliminary injunction, the Supreme Court normally would issue its one-sentence "certiorari denied" orders and be done with it, allowing the case to proceed to final trial. The reason that the Court did otherwise here is as obvious as it is significant.
Congress has struggled since the 1996 Communications Decency Act to find a way to insulate minors from the now millions of Websites displaying hardcore sex. The Internet has grown faster than any medium of communication in history. A few short years ago, the World Wide Web was reserved for a relative handful of computer experts downloading GIFs with 2400-baud modems. Five years ago, it emerged as an indispensable element of commerce - and education. The law normally evolves slowly; the Internet has been evolving at breakneck speed.
Supreme Court justices read newspapers. There is nothing more controversial about the Internet than the issue of keeping children from accessing adult content - not Napster, not cybersquatting, not anything. In the government's petition for certiorari, the first sentence of the Statement of the Case nailed it:
"This case involves the scope of Congress's power to protect children from the harmful effects of sexually explicit material on the Internet."
That likely was not information of which any of the Justices was unaware. In advancing its argument that the case should be accepted, the government made its case for why this petition was a dire emergency, right out of the box:
"The court of appeals... held that COPA's reliance on community standards to identify material that is harmful to minors 'must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute.' The court's decision prevents the government from enforcing COPA against anyone under any circumstances, and the court was further of the view that there may be no constitutional means to protect children from the harmful effects of the voluminous amount of pornographic material on the World Wide Web. The court of appeals thus has gravely - indeed, in its own view, perhaps fatally - constricted Congress's power to address that serious problem."
The balance of that opening paragraph explains the second important reason why the review of this case is very significant:
"The court of appeals' holding is also incorrect. The court's decision... conflicts with decisions of this Court that have upheld the application of community standards to determine whether material appeals to the prurient interest and is patently offensive."
This case will not just be about insulating minors from the World Wide Web. It will be about Miller v. California.
From 1957 to 1973, the Supreme Court struggled with the development of how to draw the line between erotic speech protected by the First Amendment and that which could be subject to criminal prosecution, culminating in the Miller v. California decision. A shorthand rendition of the Miller test is that erotic materials are obscene - not protected by the First Amendment and thus the disseminators can be criminally prosecuted - if the trier of fact finds that the material:
a. Taken as a whole according to local community standards appeals to the prurient interest in sex;
b. Contains depictions of sexual activities that, according to local community standards, are patently offensive; and
c. Lacks serious value.
Note the "and." It takes all three findings to strip erotic materials of presumptive First Amendment protection.
The Miller test has been with us for almost three decades. The Supreme Court tweaked it some during the 1970s and early 1980s, but has not seriously examined it since 1987.
But the Miller test applies where only adults are involved, so it cannot be impacted by this case, which involves only minors:
Compare with the Miller test the COPA definition of "harmful materials" from which minors must be insulated, which is as follows:
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.
Look familiar? What happened is that during the 1960s, when the Supreme Court was struggling to develop an obscenity test, it approved a New York what-is-obscene-for-minors test. Ginsberg v. State of New York, 390 U.S. 629 (1968). A similar statute was approved much more recently in the often-cited decision American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990). States almost uniformly enacted statutes modeled after the one approved in Webb, and so did the federal government in COPA, above. Thus, the COPA test is materially identical to the Miller test, except it adds "with respect to minors" in the two community standards prongs and "for minors" in the serious-value prong.
Before Miller v. California was decided, there was some question as to what standards should apply in evaluating prurient appeal, offensiveness, and serious value. The Court squarely resolved that in Miller:
"It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.... People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity."
Nearly 15 years ago - when the Court last examined the obscenity test - the Court reaffirmed as much:
"The first and second prongs of the Miller test - appeal to prurient interest and patent offensiveness - are issues of fact for the jury to determine applying contemporary community standards.... [U]nlike prurient appeal and patent offensiveness, '[l]iterary, artistic, political, or scientific value... is not discussed in Miller in terms of contemporary community standards.'" Pope v. Illinois, 481 U.S. 497 (1987).
The decision of the Court of Appeals that the Supreme Court now has agreed to review found that, in the context of the Internet, the notion of community standards was unworkable.
"Despite the government's assertion, '[e]ach 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.... 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 Website, 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."
This requires the Supreme Court to examine Miller head-on. The Court has referred to it as the "intractable problem of obscenity," which it is. And this is a very conservative Court.
Finally, if the above does not cause you any loss of sleep, perhaps this will: The 1973 Miller v. California decision was 5-4, the dissent embracing Justice Brennan's position that it was impossible to draw a line of "obscene" versus "protected" speech in a way that was sufficiently precise so as not to run afoul of the prohibition of the Due Process Clause against overly vague statutes. The 1987 Pope v. Illinois decision also was 6-3, with Justices Brennan, Marshall, and Stevens embracing the dissent in Miller. Justices Brennan and Marshall have been replaced by Justices Souter and Thomas. Justice Scalia, then new to the Court but now a veteran - the same Justice Scalia that railed in oral argument in the signal-bleed case his disbelief that Playboy's softcore channel could enjoy any First Amendment protection - wrote a concurring opinion in Pope:
"I must note, however, that in my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can.... Just as there is no use arguing about taste, there is no use litigating about it. For the law courts to decide 'What is Beauty' is a novelty even by today's standards....
"All of today's opinions [the majority and the dissents], I suggest, display the need for reexamination of Miller."
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.
