Constitutional Analysis of the Oxley Bill — The Child Online Protection Act (H.R. 3783) September 24, 1998

The Child Online Protection Act (H.R. 3783) sponsored by Rep. Oxley raises serious constitutional concerns. While narrower than the Communications Decency Act (CDA I) of 1996, its predecessor which was struck down by the Supreme Court last year, H.R. 3783 (CDA II) contains many of the same features that ultimately led to the Court's ruling that CDA I was unconstitutional.

Major constitutional problems raised by H.R. 3783:

1. Imposes serious burdens on constitutionally-protected speech, including materials such as the recently released Starr report, movies, and television programs, when disseminated through popular commercial Web sites such as CNN, Yahoo, or MS-NBC.
2. Fails to effectively serve the government's interest in protecting children, since it will not effectively prevent children from seeing inappropriate material originating from outside of the U.S. nor will it cover material available through other Internet resources besides the World Wide Web, such as chat rooms or email.
3. Does not represent the least restrictive means of regulating speech, according to the Supreme Court's findings that blocking and filtering software give parents the ability to screen out undesirable content without burdening speech. Congress has not produced an adequate record to refute this finding or to support the notion that H.R. 3783 is the least restrictive means of protecting children.

I. Background and Overview of the Bill

The bill imposes serious burdens and restrictions on speech, based on its content. Such a statute can be upheld only if it directly and substantially serves a compelling governmental interest and "will in fact alleviate [the] harms in a direct and material way." [1] Moreover, a law restricting speech must use the least restrictive means possible. [2]

The core of the Child Online Protection Act is a national prohibition on information considered "harmful to minors." The definition of "harmful to minors" refers to "community standards." In the context of the global Internet, the community standards definition is impermissibly vague.

The US Supreme Court has never approved of a single, national obscenity standard, nor has it approved a "harmful to minors" statute based on a national, as opposed to local, standard. As the Court stated in the landmark obscenity decision Miller v. California, [12] there cannot be:

In the context of the World Wide Web, a reference to community standards is hopelessly vague. What is the relevant community that a publisher should look to before deciding to post information on a Web site? Will the standards of the most conservative community dictate what can be posted anywhere else? Unlike traditional media, where speakers can exercise reasonable control over the distribution of their speech, posting information on the World Wide Web makes it instantaneously and simultaneously available in varied communities across the country and indeed around the world.

The vagueness of the statute is likely to chill speech, as Web site operators reduce their easily accessible content (i.e. that which is not behind an age verification barrier) to that information which would be permissible in the community least tolerant of speech. This will restrict the availability of constitutionally protected speech for adults (and in some instances older minors in more tolerant communities) and counter to the bill’s stated goal undermine the autonomy of local communities to establish and enforce their own rules regarding what is "harmful to minors."

This is particularly troubling in the context of a statute with serious criminal penalties. The Fifth Amendment requires that a criminal law must be clear enough to give notice of what conduct is proscribed. The vagueness of the "harmful to minors" standard in light of the multitude of communities who can access information on the Web is likely to fail this clear notice test.

The Supreme Court has held that persons cannot be required to surrender their privacy rights in order to exercise their First Amendment Rights. The Child Online Protection Act burdens adults' access to constitutionally-protected information by requiring those who desire "harmful to minors" information to identify themselves, thereby creating a detailed list of individuals who have accessed sites with material deemed "harmful to minors." While the statute creates limited privacy protections for the information collected in the course of age verification, it still conditions access to information upon the disclosure of identity. As the Government’s witness acknowledged in the CDA trial, individuals will be unwilling to register their names with such a system. In contrast, user-controlled filtering and blocking tools preserve recipient anonymity.

The Supreme Court has struck down legislation that conditions access to otherwise protected material in ways that may chill individuals’ exercise of their First Amendment right to read or access information. [14] In the case invalidating part of the Cable Act, the Court specifically noted that "the written notice requirement will further restrict viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the ‘patently offensive’ channel." [15]

The affirmative defense found in the bill will require individuals to disclose personal information — in some instances including name, address, social security number, in addition to credit card number — to the publisher or a third party in order to access information. Current age verification technologies tend to be identity driven. [16] Reliance on such systems will create records of individuals’ First Amendment activities. Conditioning adult access to constitutionally protected speech on a disclosure of identity poses a Faustian choice to individuals seeking access to information -- protect privacy and lose access or exercise First Amendment freedoms and forego privacy.

While H.R. 3783 seeks to regulate access to a narrower category of speech than the CDA, it fails to meet the least restrictive means test established by the Court. As the Supreme Court stated in the CDA decision, "the level of discourse ‘reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox" and this is so ‘ regardless of the strength of the government’s interest’ in protecting children."

H.R. 3783 will burden individuals' ability and willingness to access constitutionally protected information by requiring them to reveal their identity and their interest in Web sites providing "harmful to minors" information. It is likely to restrict the availability of "harmful to minors" information because commercial Web sites who do not charge for access to information may find the use of credit-card and adult verification systems too costly and complicated to implement and therefore remove information rather than comply with the bill. In fact, the only speakers who would not be significantly affected by the bill are commercial pornographers, because they already require payment by credit card for access to their speech.

The inability to assess the community whose standard applies, coupled with the fear of criminal liability, will chill speech as speakers reduce their readily accessible speech to that which is allowed in the least speech-tolerant jurisdiction. Rather than preserving the diversity of speech and community values, which the Court’s community based harmful to minors jurisprudence protects, the bill will reduce community autonomy and limit the information readily available on the Web.

Had Congress developed a factual record akin to that developed by the district court in the CDA case, it would have found that it is impossible to prevent minors from gaining access to a substantial volume of ‘indecent’ material by national laws regulating speakers. As the Supreme Court concluded, the least restrictive means of achieving the government’s stated goal of protecting children from information that is "harmful to minors" is at the recipient end.

The CDA decision, and the findings of fact upon which it is based, identified filtering and blocking technologies as a narrow, media-appropriate means of providing families with the means of protecting their children while meeting the diversity goals of the First Amendment. Congress has not held hearings to determine whether technical tools or this bill would be the least restrictive means of protecting children. There has been no study, no discussion, and no comparison of the effectiveness of various approaches, their likely impact on speech, and their appropriateness for the Internet. Without a factual record to support this bill, the Court will find it, like the CDA, unconstitutional.

Footnotes

[ 2 ] See, e.g., Simon & Schuster, Inc. v. New York St. Crime Victim's Bd., 502 U.S. 105, 115-116 (1991).

[ 3 ] In the Reno v. ACLU, the government did not dispute this point.

[ 4 ] As the Federal District Court found in the CDA case, a substantial amount of indecent material is posted abroad. And foreign content is otherwise indistinguishable from domestic content.

[ 5 ] See, e.g. Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 113 S. Ct. 2217, 2234 (1993) (quoting Florida Star v. B.J.F., 491 U.S. 524 541-542 (1989).

[ 6 ] Denver Area Education Television Consortium, Inc. v. FCC, 116 S. Ct. 2374 (1996) (invalidating a provision which would have required cable operators operating leased lines to segregate certain 'patently offensive' programming to place it on a single channel and block it unless a viewer affirmatively requested access).

[ 7 ] Id., 116 S. Ct. at 2391.

[ 8 ] Id.

[ 9 ] 492 U.S. 115, 126-129 (1989).

[ 10 ] Id. at 129.

[ 11 ] The federal district court stated in its finding of facts: "The burdens imposed by credit card verification and adult password verification systems make them effectively unavailable to a substantial number of Internet content providers." Finding of Fact 107.

[ 12 ] 413 U.S. 15 (1973).

[ 13 ] Id. At 30.

[ 14 ] For example, the Court struck down a law that required people who wished to receive "communist literature" to sign-up at the post office. Lamont v. Postmaster General, 381 U.S. 301 (1965). More recently, in Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 116 S. Ct. 2374 (1996), the Court held that the government may not require adults to affirmatively request controversial but protected material in order to receive it.

[ 15 ] Denver Area Educational Telecommunications Consortium, supra, (citing Lamont v. Postmaster General 381 U.S. 301, 307 (1965).

[ 16 ] The following are examples of age verification systems being used on the Web: