CDT POLICY POST Volume 8, Number 11, May 13, 2002

A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY

CONTENTS:

(1) Supreme Court Keeps Injunction Against COPA Net Content Controls

(2) "Community Standards" Theory of Appeals Court Rejected

(3) Education and User Control, Not Legislation, Key to Protecting Kids Online

(1) SUPREME COURT KEEPS INJUNCTION AGAINST COPA NET CONTENT CONTROLS

The Supreme Court issued a ruling today in the case challenging the Child Online Protection Act (COPA), a federal law that restricts online content deemed "harmful to minors." Two lower courts had ruled that COPA violated the First Amendment and enjoined its enforcement. The Supreme Court today kept that injunction in force, blocking the Justice Department from enforcing the Act. The Court also returned the case to an intermediate-level appeals court based on flaws in that court's interpretation of the long-standing "community standards" obscenity test as applied to the Internet.

Major points about today's ruling:

The Supreme Court did not say that COPA is constitutional. All nine Justices of the Court agreed that the lower court injunction against COPA should remain in effect pending further court proceedings.
The Supreme Court was explicit in saying that its decision was a narrow decision that only addressed a specific conclusion of the Third Circuit Court of Appeals - namely, its holdings about community standards.
Nothing in the Supreme Court decision casts doubt on the original holding of the U.S. District Court that COPA is unconstitutional.
The Supreme Court did not give any indication of its views on the theories mainly relied upon by those challenging COPA, namely, that in the name of protecting children it would force Web publishers to take down material that is legal for adults and protected under the First Amendment.

In sum, nothing in today's ruling detracts from CDT's belief that COPA should ultimately be found unconstitutional, and suffers from the same fatal First Amendment flaws of its predecessor, the Communications Decency Act.

You can download the Supreme Court decision from http://www.cdt.org/speech/copa/020513opinion.pdf

Briefs and the text of COPA are online at http://www.cdt.org/speech/copa/

(2) "COMMUNITY STANDARDS" THEORY OF APPEALS COURT REJECTED

The Child Online Protection Act, passed in 1998, makes it a crime for anyone, by means of the World Wide Web, to make any communication for commercial purposes that is "harmful to minors" unless the person has somehow restricted access by minors (for example, by requiring a credit card number.) COPA imposes criminal and civil penalties of up to $50,000 per day for violations. CDT had long argued that COPA unconstitutionally burdens speech that is protected for adults. In 1999, a federal district court agreed and prohibited the Justice Department from enforcing of the statute. That ruling was appealed by the government, and upheld by the Third Circuit Court of Appeals in 2000.

The Third Circuit had based its decision on a theory that had not been advanced by any party - that the traditional "community standards" test for judging what is illegal obscenity could never apply to the Internet. The Supreme Court rejected that broad theory, but specifically did not address the grounds on which the District Court originally declared COPA unconstitutional.

While the court rejected the Third Circuit's conclusion that a "community standards" test could never apply to the Internet, it left the test open to further challenge in later litigations. Moreover, the Court left open a host of issues that would have to be resolved in applying community standards to the Internet. For example, different justices expressed different opinions about whether the "local" community standards of the country's most conservative communities would govern Internet content, or whether a new "nationwide" community standards should apply online.

As a practical matter, the primary result of the Supreme Court's decision is that the case will be remanded -- or sent back -- to the Third Circuit Court of Appeals for consideration of the First Amendment grounds on which the district court struck down COPA . The district court has already conducted a hearing and concluded that COPA restricts speech in a manner that violates the First Amendment.

Beyond that, it is hard to draw many conclusions from the Supreme Court's decision, for the Justices were highly fractured: Justice Thomas filed the "opinion of the Court," but only two other Justices (Chief Justice Rehnquist and Justice Scalia) agreed with everything Thomas wrote. Justices O'Connor and Breyer each filed solo opinions "concurring in the judgment" that the appeals court's reasoning was wrong. Justice Kennedy, Souter, and Ginsburg filed a different concurrence, and Justice Stevens filed a dissent.

(3) EDUCATION AND USER CONTROL, NOT LEGISLATION, KEY TO PROTECTING KIDS ONLINE

The Supreme Court ruling highlights the difficulties in trying to legislatively control content on the Internet. In that respect, the Supreme Court decision echoed the findings last week of the National Research Council (NRC), which concluded after exhaustive study that legislation will not solve the problem of children's access to objectionable content via the Internet.

Even as Congress passed COPA, in separate legislation it directed the NRC to conduct a study about how best to protect children from inappropriate material online. That study has now conclusively demonstrated that legislation simply will not work to protect children. As the COPA case is sent back to the Third Circuit, the NRC study will be very relevant to the question whether COPA is the least restrictive means for protecting children.

This expensive cycle of legislation and litigation does little to serve children and families online. CDT believes that giving users control over what they see and do online - through education and through tools such as those collected at sites like http://www.getnetwise.org - will more effectively protect kids in ways consistent with their own family values, and with the Constitution.

Instead of passing new laws - which do little to address the majority of adult content that is now overseas - the government can encourage and foster education for children and families about how to assure a safe online experience for children. In addition, it can devote increased resources for better enforcement of laws against child predation and child sexual exploitation.

The NRC study, "Youth, Pornography, and the Internet," is online at http://www.nap.edu/books/0309082749/html/

Detailed information about online civil liberties issues may be found at http://www.cdt.org/.

This document may be redistributed freely in full or linked to http://www.cdt.org/publications/pp_8.11.shtml.

Excerpts may be re-posted with prior permission of ari@cdt.org