Constitutionality of Child Online Protection Act Remains in Doubt - International Law Office

The Child Online Protection Act embodies Congress’s most recent attempt to restrict online access by minors to obscene or pornographic material. As enacted in 1998, the act prohibits any person, subject to potential civil and criminal penalties, from “knowingly...by means of the World Wide Web, mak[ing] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors”.(1) One part of the act’s definition of 'material that is harmful to minors' turns on whether an “average person, applying contemporary community standards, would find [that the image, article, recording or other material], taking the matter as whole and with respect to minors, is designed to appeal...or pander to the prurient interest”.(2)

On May 13 2002 the Supreme Court vacated a ruling by the Third Circuit Court of Appeals that the act’s use of a 'community standards' provision to judge whether “material...is harmful to minors” renders the act substantially overbroad and thus unconstitutional on its face under the First Amendment.(3) However, although eight of the justices voted to vacate the Third Circuit’s ruling, the Supreme Court produced five separate opinions, with no full opinion garnering more than three votes. In fact, in addition to Justice Stevens, who dissented and would have affirmed the Third Circuit ruling, five other justices - O’Connor, Breyer, Kennedy, Souter and Ginsburg - indicated serious reservations concerning the community-based standards approach. They were particularly concerned about the interplay between local community standards and current internet technology that does not generally enable publishers to control access based upon the geographic location of the audience. The court left in place the preliminary injunction entered by the district court barring the government from enforcing the act pending final adjudication of the plaintiffs’ claims.

Justice Thomas's plurality opinion concluded that variations in local community standards would be acceptable given that the act is more narrowly drawn than the Communications Decency Act 1996, which the court previously found unconstitutional because it relied on a community standards approach.(4) The Child Online Protection Act is narrower than the Communications Decency Act because material is illegal only if it appeals to the “prurient interest” of minors and, taken as a whole, “lack serious literary, artistic, political or scientific value” for minors.

The plurality read the court’s prior community standards jurisprudence, in cases dealing with obscene material delivered through the mail and a 'dial-a-porn' service, as holding that a speaker can be required to observe varying local community standards when the scope of an obscenity statute’s coverage is sufficiently narrowed by a 'serious value' prong and a 'prurient interest' prong. The plurality acknowledged, as the government had stipulated, that access to Web-posted material generally cannot be controlled based upon geographic location, but concluded that a different approach for online material was neither required nor justified. In the plurality’s view, a publisher must abide by the standards of each community into which it chooses to send its material, and if it wishes to be judged only by the standards of particular communities, then it “need only take the simple step” of utilizing a medium that allows it to target the release of its material to those communities.

However, O’Connor concluded in her partial concurrence that, unlike those speakers that use the traditional mail or telephone systems, expecting internet speakers to bear the burden of controlling the recipients of their speech would potentially suppress “an inordinate amount of speech”. She also stated that although the plaintiffs had failed to submit sufficient examples of material that would both violate the Child Online Protection Act and lead to varying results among local communities so as to sustain their facial challenge, the use of local community standards in an as-applied challenge could cause problems, and that future facial challenges to the regulation of online obscenity might succeed with more convincing evidence of substantial overbreadth. Thus, she concluded that a national standard is necessary “for any reasonable regulation of the Internet”, and seemed to suggest that stronger evidentiary examples could lead to a different result.

In his partial concurrence, Breyer reached a similar conclusion, albeit through somewhat different reasoning. Breyer focused on the Child Online Protection Act’s legislative history and found that it clearly calls for a standard that is “national and adult”. He also concluded that construing the act to include a national standard would avoid the "serious" First Amendment problem created by a construction adopting the community standards of every locality in the country, which would provide the most “puritan” of communities with a “heckler’s internet veto affecting the rest of the nation”.

In concurring only in the court’s judgment, Kennedy, joined by Souter and Ginsburg, did not share this reading of the Child Online Protection Act’s legislative history, and indicated that Congress’s efforts to remedy the constitutional defects of the Communications Decency Act influenced consideration of this particular facial challenge to the Child Online Protection Act’s constitutionality. However, Kennedy also made clear that many questions remained unanswered about the Child Online Protection Act, and that the Third Circuit had erred primarily in looking at the community standards issue “in a vacuum” and by doing so, furthermore, at a “high level of generality”. The Third Circuit had correctly focused on the variation in community standards across the nation, and its ultimate conclusion might prove correct, but unlike the district court, it had failed to attempt a comprehensive analysis of the Child Online Protection Act and “its various dimensions of potential overbreadth”. Whether the variation in community standards rendered the entire statute substantially overbroad could not be determined without first assessing the extent of the speech covered and the variations in community standards with respect to that speech. Questions remained, for example, as to:

• interpretation of "communication for commercial purposes";
• what it means to evaluate internet material "as a whole"; and
• whether any venue limitations would apply to the government’s choice of venue (and thus the community standard to be applied) in a prosecution under the Child Online Protection Act.

While the Child Online Protection Act has survived this first test in the Supreme Court, the test was a limited one that has left many questions unanswered concerning the act’s constitutionality. In spite of their different approaches, six justices have indicated significant concerns about the act’s constitutionality. The future of the act remains very much in doubt.

For further information on this topic please contact Alan Raul at Sidley Austin Brown & Wood LLP by telephone (+1 202 736 8477) or by fax (+1 202 736 8711) or by email (araul@sidley.com). The Sidley Austin Brown & Wood website can be accessed at www.sidley.com and the firm's CyberLaw website is located at www.sidley.com/cyberlaw.

Endnotes

(1) 47 USC Section 231(a)(1).

(2) 47 USC Section 231(e)(6).

(3) Ashcroft v ACLU, 535 US ___, 2002 WL 970708 (2002).

(4) Reno v ACLU, 521 US 844 (1997).