A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
CONTENTS:
(1) U.S. Supreme Court Hears Oral Arguments In The Ashcroft V. ACLU Challenge To COPA
(2) Supreme Court Focuses On The "Community Standard" Issue
(3) CDT Remains Confident That COPA Ultimately Will Not Survive Legal Scrutiny.
[Editor's Note: We appreciate that this is our second Policy Post today. Although we do try to limit the frequency of Posts, the following is a late breaking report and we did not want to delay it.]
Yesterday, November 28, the U.S. Supreme Court heard oral arguments in the most important Internet free speech case since the landmark ruling in the CDA case in 1997. Although the arguments yesterday raised challenging legal issues, CDT remains confident that in the final analysis, the courts will act to protect free speech on the Internet.
This week, the United States Supreme Court heard oral arguments in a major test of free speech online. In the case of Ashcroft versus ACLU, the Court is reviewing the constitutionality of the 1998 Child Online Protection Act (COPA). COPA imposes criminal and civil sanctions on any person who uses the Web to display "material that is harmful to minors" to anyone under the age of 17. Two lower courts - the federal district court in Philadelphia and the federal court of appeals - prohibited enforcement of COPA because it violates the First Amendment.
CDT, along with a broad coalition of publishers and public interest groups, filed briefs to the court of appeals and the Supreme Court arguing that COPA is unconstitutional. CDT also was counsel on a brief to the Supreme Court filed on behalf of leading Internet industry groups in support of the challenge to COPA.
The COPA statute is the successor to the Communications Decency Act (CDA) that was struck down in a pair of landmark lawsuits brought by CDT and others in 1996. In the CDA litigation, the Supreme Court held for the first time that speech on the Internet deserves the highest level of constitutional protection under the First Amendment. In passing the COPA law after the CDA was overturned, Congress created a nearly identical scheme of government censorship that suffers from the same constitutional deficiencies that the courts found in the CDA. The ACLU and others challenged COPA in district court in Philadelphia. That court held that COPA is unconstitutional because it is not the "least restrictive means" to protect children on the Internet, and because it inhibits the publication of lawful speech to adults.
On appeal, the Third Circuit Court of Appeals agreed that COPA is unconstitutional, but relied on a legal analysis that had not been addressed by the district court. The appeals court found that the COPA statute is defective because it applies a "community standards" test to the nationwide (indeed global) Internet. Based on the global nature of the Internet, the Third Circuit Court of Appeals struck down the COPA statute. Yesterday, the U.S. Supreme Court heard oral arguments in the government's appeal of that decision.
CDT believes the Supreme Court argument continued to vindicate our belief that COPA is unconstitutional and suffers from the same flaws as the CDA. However, the argument left the suggestion that COPA may undergo further legal review before final resolution.
More information about the Communications Decency Act can be found at http://www.cdt.org/speech/cda/.
More information about the Child Online Protection Act can be found at http://www.cdt.org/speech/copa/.
Signaling the importance of the case, the Solicitor General of the United States, Ted Olson, argued for the government. The ACLU was well represented by Ann Beeson, who has been involved in Internet free speech cases since the original CDA case in 1996.
The Supreme Court Justices indicated early in the oral argument that they would focus only on the "community standards" issue addressed by the Third Circuit Court of Appeals.
Under the community standards approach, the lawfulness of sexually oriented speech is evaluated on a locality by locality basis. Although such an approach makes sense with media like magazines and videotapes that are sold in local stores, it does not translate well to the Internet, where most Web content is available to everyone.
The government argued that COPA could be upheld if the Court construes the "community standards" test to be a national test as applied to the Internet. In other words, if Internet content were challenged in court as "harmful to minors," a jury would be asked to determine whether the content is offensive based on what the country as a whole would find offensive (as opposed to what the jury's local community would find offensive). Several Justices expressed doubt about the ability of a jury to apply such a "national standard." Justice Scalia, for example, asked the government: "What does someone raised his whole life in North Carolina know about Las Vegas?" Chief Justice Rehnquist asked if a hypothetical North Carolina jury would pay any attention to an out-of-town expert witness testifying that certain content was acceptable nationally.
In her argument, the ACLU's Ann Beeson drove home the point that a national standard as sought by the government would likely reduce speech on the Internet to a level acceptable in the most conservative jurisdiction in the country. In other words, a New York City based web site could not post content that would be fully lawful in New York City, if the content might be deemed to be "harmful to minors" by a jury located in a very conservative rural community.
Beeson also forcefully argued that no matter how the Court resolves the community standards question, the COPA statute still is unconstitutional for the reasons found by the Philadelphia district court. Beeson explained that the evidence considered by the district court demonstrates that many web sites would lose a substantial percentage of their visitors if the web sites were forced to comply with the constraints imposed by COPA.
Beeson also emphasized that filters and other user-empowerment tools were shown to be more effective in protecting children than the COPA law itself. Justice Ginsberg had pressed the government's lawyer on this point, asking whether COPA was really a "futile" exercise in light of the availability of sexual content hosted on overseas web sites and therefore outside the reach of the law. Solicitor General Olson argued that Congress had a right to take some steps even if those steps would not be perfectly successful, but Olson failed to grapple with the evidence that the COPA would in fact have little or no value in protecting children. As CDT and others have argued since the CDA case in 1996, parental tools such as filtering devices remain the most effective way to protect kids on the Internet.
Although questions raised by the Court in oral argument are not necessarily predictive of the outcome of the case, yesterday's proceedings strongly suggested that the Court is aware of the constitutional challenges to COPA beyond the community standards issue. No matter how the Supreme Court rules on the community standards question, we believe it will ultimately consider the other free speech arguments advanced by the ACLU, CDT, and others, and find COPA to be unconstitutional.
On the community standards issue, CDT is hopeful that the Supreme Court will re-affirm that it would be unconstitutional for a federal law to limit speech on the Internet to the level that acceptable in the most conservative community in our country. CDT remains confident that on the basis of other challenges to COPA - which were not the focus of yesterday's hearing - the Court will permanently overturn COPA.
CDT will of course continue to follow the developments closely. A decision by the Supreme Court in the current appeal could come in the first six months of 2002, but will almost certainly be issued by June, 2002.
Detailed information about online civil liberties issues may be found at http://www.cdt.org/.
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Policy Post 7.15 Copyright 2001 Center for Democracy and Technology
