SPEECH & CONTENT REGULATION IN CYBERSPACE: Ashcroft v. ACLU Ashcroft v. Free Speech Coalition American Library Association, Inc. v. US BY ERIC IAN SHANK

Ashcroft v. ACLU United States Court of Appeals for the Third Circuit held that the Child Online Protection Act (COPA) violated the First Amendment because it relied, in part, on community standards to identify material that was harmful to minors. Supreme Court held: Internet's unique characteristics did not justify a different approach than that previously set forth in federal obscenity statutes. Any variance caused by the statute's reliance on community standards was not substantial enough to violate the First Amendment. Judgment vacated, case remanded.

Child Online Protection Act 47 U.S. §231 Prohibits any person from knowingly making any communication for commercial purposes on the World Wide Web that is available to any minor and that includes any material that is harmful to minors. Defines "material that is harmful to minors" as any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that (1) 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; (2) 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 (3) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

Ashcroft v. Free Speech Coalition ΔΔ: Adult Entertainment coalition Bold Type, Inc., nudist publication Jim Gingerich, painter Ron Raffaelli, erotic photographer Challenged Child Pornography Prevention Act of 1996 (CPPA) in Northern District of California. Issue: “Virtual” child pornography (computer-generated imagery) Argument: “appears to be” and “conveys the impression” provisions were so overbroad and vague as to violate 1 st Amendment. Held: Ban on virtual child pornography is unconstitutional.

The Child Pornography Prevention Act of 1996 (CPPA) TITLE 18. CRIMES AND CRIMINAL PROCEDURE PART I. CRIMES CHAPTER 110. SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN 18 U.S.C. § 2256 (8) "child pornography" means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where-- (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.

United States v. Smith, 795 F.2d 841 (USCA 9 th Cir. 1986) Cert. denied Smith took photos of three underage girls in various stages of undressing, engaging in what he called “horseplay”. He later alleged he was planning to use the pictures in a professional modeling venture. He mailed the roll of film to a private developer in Maryland. The company contacted U.S. postal inspectors, who filed an affidavit for a search warrant. Smith was charged with six violations of 18 U.S.C. §§ 2251, He was convicted on all counts; the decision was affirmed on appeal. Influential points of law: Even undeveloped film constitutes “visual depiction” of "sexually explicit conduct" Child pornography statute does not require obscenity “I can’t define it, but I know it when I see it.”

Miller v. California, 413 U.S. 15 (1973) Standard for banning obscenity. Obscene material is unprotected by the First Amendment. Roth v. United States, 354 U.S. 476 (1957) The basic guidelines in determining whether material is obscene are: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

New York v. Ferber, 458 U.S. 747 (1982) Usual obscenity standard does not apply to child pornography. State’s interest in protecting exploitation and abuse of children. Paul Ferber, the proprietor of a Manhattan bookstore specializing in sexually oriented products, sold two films to an undercover police officer. The films were devoted almost exclusively to depicting young boys masturbating. Ferber was found guilty of disseminating child pornography in violation of New York law.

Government’s position: There is a direct link between child pornography and child abuse. Pedophiles may use virtual porn to seduce children. It is difficult to tell real pictures from virtual or “morphed” images. Virtual porn provides a loophole for child pornographers to evade prosecution.

Free Speech Coalition: The CPPA abridges the freedom of speech. Virtual pornography is not obscene under the Miller standard, and does not exploit or abuse children, as in Ferber.

Supreme Court Expression may not be prohibited just because it is offensive. The language in the CPPA could also be applied to a Psychology textbook, Romeo and Juliet or American Beauty. Teen sex is a fact of modern life, and has been an artistic theme for centuries. The CPPA prohibits depictions of persons under the age of 18, whereas in 39 states and the District of Columbia, the age of consent is 16 or younger. 48 states permit 16 year-olds to marry with parental consent. Virtual pornography is not intrinsically related to child abuse. Government cannot premise legislation on “controlling a person’s private thoughts”. Stanley v. Georgia, 394 U.S. 557 (1969). Virtual imagery may actually reduce incidence of child exploitation: why would pornographers risk prosecution if computerized images serve the same purpose? Dissent Just because statutory language could be construed too broadly doesn’t mean it should or will be. It’s evident that Congress targeted a very specific and serious problem with this legislation.

Held: §§2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional. Ban on virtual child pornography violates the 1 st Amendment. Transmitting pictures of pornography involving actual children remains illegal. Note: Obscenity is regulated separately, in 18 U.S.C.§§

American Library Association, Inc. v. US Plaintiffs—a group of libraries, library associations, library patrons, and Web site publishers—alleged Childen’s Internet Protection Act (CIPA) was unconstitutional, because: (1)it induced public libraries to violate their patrons' First Amendment rights contrary to the requirements of South Dakota v. Dole, 483 U.S. 203 (1987); and (2) it required libraries to relinquish their First Amendment rights as a condition on the receipt of federal funds and was therefore impermissible under the doctrine of unconstitutional conditions.

South Dakota v. Dole, 483 U.S. 203 (1987) South Dakota law permitted persons 19 or older to purchase beer; however, 23 U.S.C. § 158 allowed Congress to withhold highway funding from any state with a drinking age of under 21. SD argued the federal statute was unconstitutional, because it: (1)violated Congress' spending power under Art. I, § 8, and (2)induced citizens to engage in unconstitutional activities, in violation of the 21 st Amendment. Claims rejected at trial and appellate level; Supreme Court affirmed. Holding: Congress may use spending power to further secondary goals. Constitutional test is whether the exercise is in pursuit of the general welfare. However, Congress may not exercise this power to further a policy that is inherently unconstitutional.

CHILDREN’S INTERNET PROTECTION ACT (Pub. L ) Passed in an effort to shield children from harmful, obscene or pornographic content on the Internet. Required public libraries to install blocking/filtering software on their computers in order to receive grants under the Library Services and Technology Act, 20 U.S.C. § 9101 ("LSTA"), and "E-rate discounts" for Internet access and support under the Telecommunications Act, 47 U.S.C. § 254.

TITLE XVII--CHILDREN'S INTERNET PROTECTION SEC LIMITATION ON AVAILABILITY OF CERTAIN FUNDS FOR LIBRARIES. SEC REQUIREMENT FOR SCHOOLS AND LIBRARIES TO ENFORCE INTERNET SAFETY POLICIES WITH TECHNOLOGY PROTECTION MEASURES FOR COMPUTERS WITH INTERNET ACCESS AS CONDITION OF UNIVERSAL SERVICE DISCOUNTS.

Holding: Libraries may create and enforce computer usage policies governing internet access, but may not infringe on their patrons’ First Amendment rights. Congress may not deny funding to schools or libraries because they do not block or filter patrons’ internet access. Sections 1712(a)(2) and 1721(b) of the Children's Internet Protection Act are unconstitutional. “We find that it is currently impossible, given the Internet's size, rate of growth, rate of change, and architecture, and given the state of the art of automated classification systems, to develop a filter that neither underblocks nor overblocks a substantial amount of speech.”

CONCLUSIONS COPA (ACLU) Previous legal standard for obscenity (see Miller) also applies on the Internet. Reliance on “community standards” does not violate First Amendment. CPPA (Free Speech Coalition) “Virtual” child pornography is legal. CIPA (American Library Association, Inc.) Congress may not withhold funding from schools and libraries based on their refusal to abridge patrons’ rights under the First Amendment.

Food for Thought: 1.How are these three Supreme Court decisions consistent or inconsistent with each other? Do they reveal a coherent policy toward content regulation in Cyberspace? 2.Should any material on the Internet be regulated? If so, what, how, and by whom? 3.What are the philosophical and public policy implications of the decriminalization of “virtual” pornography?