The Child Online Protection Act is gone... for the moment. The good news is, the U.S. Supreme Court, after hearing argument on the merits of the preliminary injunction against the 1998 law for the second time, ruled that the statute is likely unconstitutional, and ordered that it not be enforced.
The bad news is, while the Court could have struck the law down in its entirety, it didn’t. Instead, it ordered that the injunction remain in place while a trial is held on the merits of the case in the United States District Court for the Eastern District of Pennsylvania in Philadelphia.
So why didn’t the Court just strike down the law?
“Because it’s too controversial,” opined Paul Cambria, one of the country’s foremost First Amendment attorneys. “They’re giving the government a chance to try to make it right. They’re giving them this bullshit, ‘You know, maybe things have changed in five years; we’ll give you another chance to factually make this thing happen,’ and by then, most of us will be retired and we won’t have to deal with it.”
In a sense, a trial of sorts has already been held. Immediately after COPA was passed, the American Civil Liberties Union (ACLU) sued the government on behalf of various Webmasters, retailers and others who either did business on the Web or posted information of a sexual nature that would be prohibited under COPA, and the ACLU asked for a preliminary injunction against enforcement of the new law. After days of testimony by both plaintiff and government expert witnesses, that injunction was granted. The case is now called American Civil Liberties Union v. Ashcroft.
“The court first noted that the statute would place a burden on some protected speech,” wrote Justice Anthony M. Kennedy for the majority. “The court then concluded that respondents were likely to prevail on their argument that there were less restrictive alternatives to the statute: ‘On the record to date, it is not apparent ... that [petitioner] can meet its burden to prove that COPA is the least restrictive means available to achieve the goal of restricting the access of minors’ to harmful material.” [citations redacted throughout]
The preliminary injunction was appealed to the Third Circuit Court of Appeals, which deemed the law both vague and too far-reaching. Of particular interest in that opinion was the finding that, for purposes of deciding whether any particular speech was harmful to children, the law essentially adopted the obscenity standards set in Miller v. California – the so-called “Miller test” – and questioned whether the third prong, “community standards,” could possibly be defined as it applied to the aptly-named World-Wide Web.
It was that finding which the Supreme Court considered when COPA was first argued in 2001, and the Court’s conclusion at that time was that the community standards overbreadth was insufficient to force a striking of the law altogether, and it remanded the case to the Third Circuit for reconsideration.
The Third Circuit came back swinging.
“On remand, the Court of Appeals again affirmed the District Court,” Kennedy wrote. “The Court of Appeals concluded that the statute was not narrowly tailored to serve a compelling Government interest, was overbroad, and was not the least restrictive means available for the Government to serve the interest of preventing minors from using the Internet to gain access to materials that are harmful to them.”
However, in this second consideration of the law, the high court essentially side-stepped the entire second Third Circuit opinion and opted to concentrate on the original findings of the District Court.
“Because we affirm the District Court’s decision to grant the preliminary injunction for the reasons relied on by the District Court, we decline to consider the correctness of the other arguments relied on by the Court of Appeals,” Kennedy stated.
What the Court majority found most impressive in the District Court opinion authored by Judge Lowell A. Reed, Jr., was the concept that “there are plausible, less restrictive alternatives to COPA. A statute that ‘effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another ... is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve,’” wrote Kennedy, quoting from Judge Reed’s decision.
“In considering this question, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal,” Kennedy explained. “The purpose of the test is not to consider whether the challenged restriction has some effect in achieving Congress’ goal, regardless of the restriction it imposes. The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress’ legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives... It is not an answer to say that COPA reaches some amount of materials that are harmful to minors; the question is whether it would reach more of them than less restrictive alternatives.”
For the majority, the answer appeared to be filters.
Filters are less restrictive than COPA,” Kennedy wrote. “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 John Paul Stevens went even further on that path in his concurring opinion, joined by Justice Ruth Bader Ginsburg.
“COPA’s use of community standards is not the statute’s only constitutional defect,” Stevens opined. “Today’s decision points to another: that, as far as the record reveals, encouraging deployment of user-based controls, such as filtering software, would serve Congress’ interest in protecting minors from sexually explicit Internet materials as well or better than attempting to regulate the vast content of the World Wide Web at its source, and at a far less significant cost to First Amendment values.”
It’s an argument with which Justice Steven Breyer, writing in dissent for himself, Chief Justice William Rehnquist and Justice Sandra Day O’Connor, completely disagrees.
“I cannot accept its conclusion that Congress could have accomplished its statutory objective—protecting children from commercial pornography on the Internet—in other, less restrictive ways,” Breyer wrote.
The high court opinion goes into some depth as to why filtering would be more successful than a law which criminalizes certain Internet speech, but in doing so, it’s hard to see why the Court didn’t simply strike down COPA in its entirety.
“It is not enough for the Government to show that COPA has some effect,” said Kennedy, presaging the arguments likely to be made at trial. “Nor do respondents bear a burden to introduce, or offer to introduce, evidence that their proposed alternatives are more effective. The Government has the burden to show they are less so. The Government having failed to carry its burden, it was not an abuse of discretion for the District Court to grant the preliminary injunction.”
And later:
“The closest precedent on the general point is our decision in Playboy Entertainment Group,” the opinion says. Playboy Entertainment Group, like this case, involved a content-based restriction designed to protect minors from viewing harmful materials. The choice was between a blanket speech restriction and a more specific technological solution that was available to parents who chose to implement it. 529 U. S., at 825. Absent a showing that the proposed less restrictive alternative would not be as effective, we concluded, the more restrictive option preferred by Congress could not survive strict scrutiny. Id., at 826 (reversing because ‘[t]he record is silent as to the comparative effectiveness of the two alternatives’). In the instant case, too, the Government has failed to show, at this point, that the proposed less restrictive alternative will be less effective.”
Apparently, just two things prevented the Court from striking down the law was a perceived lack of an evidentiary base to do so.
“[T]here is a serious gap in the evidence as to the effectiveness of filtering software,” Kennedy noted. “For us to assume, without proof, that filters are less effective than COPA would usurp the District Court’s fact-finding role... and on a related point, the factual record does not reflect current technological reality—a serious flaw in any case involving the Internet. The technology of the Internet evolves at a rapid pace. Yet the fact findings of the District Court were entered in February 1999, over five years ago. Since then, certain facts about the Internet are known to have changed.”
Undoubtedly, however, the ACLU will be happy that the Supreme Court is making many of the plaintiffs’ trial arguments for them.
“One argument to the contrary is worth mentioning—the argument that filtering software is not an available alternative because Congress may not require it to be used,” Kennedy noted. “That argument carries little weight, because Congress undoubtedly may act to encourage the use of filters. We have held that Congress can give strong incentives to schools and libraries to use them.”
One particularly encouraging aspect of this decision is the high court’s placing the burden of protecting children directly on their parents.
“COPA presumes that parents lack the ability, not the will, to monitor what their children see. By enacting programs to promote use of filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties,” Kennedy analyzed, referring to the high court’s decision declaring that the Children’s Internet Protection Act (CIPA), which required libraries receiving federal funds to install filtering software, was not unconstitutional.
Fortunately, Justice Kennedy, the author of several pro-speech and pro-personal freedom decisions in the past three years, recognizes the enormous burden the activation of COPA would place on free expression.
“There are also important practical reasons to let the injunction stand pending a full trial on the merits,” he wrote. “First, the potential harms from reversing the injunction outweigh those of leaving it in place by mistake. Where a prosecution is a likely possibility, yet only an affirmative defense is available, speakers may self-censor rather than risk the perils of trial. There is a potential for extraordinary harm and a serious chill upon protected speech.”
“Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid, and that the Government bear the burden of showing their constitutionality. This is true even when Congress twice has attempted to find a constitutional means to restrict, and punish, the speech in question.”
As expected, however, Justice Stevens could be counted on to go even further in his defense of speech and in setting forth the dangers of this law.
“In registering my agreement with the Court’s less restrictive-means analysis, I wish to underscore just how restrictive COPA is,” Stevens analyzed. “COPA is a content-based restraint on the dissemination of constitutionally protected speech. It enforces its prohibitions by way of the criminal law, threatening noncompliant Web speakers with a fine of as much as $50,000, and a term of imprisonment as long as six months, for each offense. Speakers who ‘intentionally’ violate COPA are punishable by a fine of up to $50,000 for each day of the violation. And because implementation of the various adult verification mechanisms described in the statute provides only an affirmative defense, even full compliance with COPA cannot guarantee freedom from prosecution. Speakers who dutifully place their content behind age screens may nevertheless find themselves in court, forced to prove the lawfulness of their speech on pain of criminal conviction.”
As unsurprising as Stevens’ support of free speech is the vehemence with which Justice Breyer defended the COPA statute.
“After eight years of legislative effort, two statutes, and three Supreme Court cases the Court sends this case back to the District Court for further proceedings. What proceedings?” Breyer wanted to know. “I have found no offer by either party to present more relevant evidence. What remains to be litigated? I know the Court says that the parties may ‘introduce further evidence’ as to the ‘relative restrictiveness and effectiveness of alternatives to the statute.’ But I do not understand what that new evidence might consist of.”
“Moreover,” he continued, “Congress passed the current statute ‘[i]n response to the Court’s decision in Reno’ striking down an earlier statutory effort to deal with the same problem. Congress read Reno with care. It dedicated itself to the task of drafting a statute that would meet each and every criticism of the predecessor statute that this Court set forth in Reno. It incorporated language from the Court’s precedents, particularly the Miller standard, virtually verbatim... And it created what it believed was a statute that would protect children from exposure to obscene professional pornography without obstructing adult access to material that the First Amendment protects. See H. R. Rep., at 5 (explaining that the bill was ‘carefully drafted to respond to the Supreme Court’s decision in Reno’); S. Rep., at 2 (same). What else was Congress supposed to do?”
“I recognize that some Members of the Court, now or in the past, have taken the view that the First Amendment simply does not permit Congress to legislate in this area,” Breyer ranted. “See, e.g., Ginzburg, 383 U. S., at 476 (Black, J., dissenting) (‘[T]he Federal Government is without any power whatever under the Constitution to put any type of burden on speech and expression of ideas of any kind’). Others believe that the Amendment does not permit Congress to legislate in certain ways, e.g., through the imposition of criminal penalties for obscenity... There are strong constitutional arguments favoring these views. But the Court itself does not adopt those views. Instead, it finds that the Government has not proved the nonexistence of “less restrictive alternatives.” That finding, if appropriate here, is universally appropriate. And if universally appropriate, it denies to Congress, in practice, the legislative leeway that the Court’s language seem to promise. If this statute does not pass the Court’s ‘less restrictive alternative’ test, what does? If nothing does, then the Court should say so clearly.”
Sadly, Breyer falls into the trap set by would-be censors since time immemorial: That some censorship isn’t really censorship; that in fact it actually enhances free speech.
“The Court’s decision removes an important weapon from the prosecutorial arsenal,” Breyer claims. “That weapon would have given the Government a choice—a choice other than “ban totally or do nothing at all.” The Act tells the Government that, instead of prosecuting bans on obscenity to the maximum extent possible (as respondents have urged as yet another ‘alternative’), it can insist that those who make available material that is obscene or close to obscene keep that material under wraps, making it readily available to adults who wish to see it, while restricting access to children. By providing this third option—a ‘middle way’—the Act avoids the need for potentially speech-suppressing prosecutions. That matters in a world where the obscene and the nonobscene do not come tied neatly into separate, easily distinguishable, packages. In that real world, this middle way might well have furthered First Amendment interests by tempering the prosecutorial instinct in borderline cases. At least, Congress might have so believed. And this likelihood, from a First Amendment perspective, might ultimately have proved more protective of the rights of viewers to retain access to expression than the all-or-nothing choice available to prosecutors in the wake of the majority’s opinion.
“What was perhaps most surprising was the switch in predicted positions, with Justice Thomas in the majority and Justice Breyer in the dissent,” commented AVN/AVN Online legal columnist and First Amendment attorney Clyde DeWitt. “It also looks as though Justices Stevens and Ginsburg are ready to can the Miller decision entirely.”
DeWitt refers to the section of Stevens’ dissent which reads, “I continue to believe that the Government may not penalize speakers for making available to the general World Wide Web audience that which the least tolerant communities in America deem unfit for their children’s consumption, and consider that principle a sufficient basis for deciding this case.”
“The majority of the Court sidestepped the real issue by simply holding that the trial court did not abuse its discretion in granting a preliminary injunction,” DeWitt analyzed. “But this was an extremely rare situation because the Court granted review of a case that wasn’t finished. And, on an appeal from a grant or denial of a preliminary injunction, the basic issue is never more than simply whether the trial court abused its discretion.”
But Cambria was less than satisfied by the narrowness of the opinion.
“The big thing for me was the community standard; what is the standard, because that really would have had an impact on Lou’s case, and I wanted to see that issue resolved,” said Cambria, referring to H. Louis Sirkin’s representation of Extreme Associates, currently under indictment for interstate transportation of obscenity in the Western District of Pennsylvania. “Now Lou is stuck with whatever district court judge he has deciding that issue, and if it’s bad, that could ripple to the rest of us. I wish they would have decided that or at least commented that, ‘Yes, you’re right; it can’t be a local standard.’ That’s my disappointment. I didn’t think they were going to find the statute constitutional but I was hoping that they would get involved in the standard. That was very important, but it didn’t happen.
“It’s still good from our standpoint,” Cambria continued. “It’s not a defeat, and it shows that the court is still recognizing that the First Amendment’s alive and well as it relates to adult content, and they’re not pulling back from that, as some people like Scalia would like to have them do. They’re recognizing that there is an overbreadth doctrine that there’s a danger of when it comes to the Internet. This is all good stuff, and especially in the Internet; they’re realizing that it’s different, and that’s important for us, to have them realize that it’s different and be treated differently. So we have adult content still being protected; we have them deciding that the Internet should be treated differently and we have them, although they’re giving the government a second bite at the apple, they still haven’t let the government win. So those things are extremely important. It’s still a good day as far as freedom fighters are concerned.”
But the fact that the case is being returned to the District Court for trial means that the resolution of this issue is far in the future. It’s unlikely that the trial would start before the beginning of next year, and no matter which side wins, the other is likely to appeal, which will take several more years.
Of interest is that the government and its supporters, all of whom argued in the CIPA case that filtering technology was useful and reliable enough to require that it be installed in public library computers across the country, will now have to reverse that position to argue that the technology isn’t good enough that an outright ban on adult material on the Web is the only reliable solution to keep such content out of the hands (and eyes) of minors. Moreover, the “community standards” issue which the Supreme Court didn’t deal with in this opinion is likely to be a key issue at trial.
“Assuming that, after the trial, this case again returns to the Supreme Court – a pretty safe assumption – that will be four trips on this single issue, which must be some kind of a record,” De Witt noted.
The fact that the appeals from that verdict, whatever it is, will be several years in the future, points up another important issue, which is, what will be the make-up of the Third Circuit Court of Appeals, or even the U.S. Supreme Court, when the COPA case gets to them? There are still several vacancies on the Third Circuit bench, and although no Supreme Court justices announced their retirement at the end of this term, as many as four may retire before the presidential election of 2008, so the philosophies of the resident of the White House during that period will be crucial.
