In 1996 the United States Congress passed the “Communications Decency Act of 1996″. This was Congress’ first attempt to make the Internet safe for minors by criminalizing certain Internet speech. In the case of Reno v. American Civil Liberties Union, the United States Supreme Court ruled that the “Communications Decency Act of 1996″ was in fact unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available.
In response to the Supreme Court’s decision striking down the “Communications Decency Act of 1996″, Congress passed shortly thereafter the “Child Online Protection Act” (“COPA”). This Act, among other things imposed a $50,000.00 fine and six months prison sentence for those knowingly posting for commercial purpose on the Web, content that is harmful to minors but provides an affirmative defense to commercial web speakers who restrict access to prohibited materials by requiring use of credit card or any other reasonable measures that are feasible under available technology. This Act was also challenged as to be unconstitutional by the American Civil Liberties Union.
Initially, a Federal District Court Judge ruled in favor of the American Civil Liberties Union granting a preliminary injunction against the enforcement of “COPA”. The District Court concluded that an injunction was in order as the ACLU were likely to prevail on the argument that there was a less restrictive alternative to “COPA”, particularly blocking or filtering technology.
The case then went to the Third District Court of Appeals which agreed with the District Court and affirmed that opinion. The case then went to the United States Supreme Court where the Third District Court of Appeals’ decision was overturned and sent back to the Third District Court of Appeals for their review of the case in light of the Supreme Court’s decision to remand it back to them. The Third District Court of Appeals again affirmed the District Court’s decision, including that “COPA” was not the least restrictive means for the government to serve the interest of preventing minors from using the Internet to gain access to harmful materials.
Again, the case went back up to the United States Supreme Court and on June 29, 2004, the Supreme Court once again ruled on “COPA”. The Supreme Court disagreed with the Third District Court of Appeals’ rationale as to why the District Court’s injunction was valid, but nonetheless agreed with the District Court’s ruling that in fact the preliminary injunction was in order. The Supreme Court sent the case back this time to the District Court for a trial on the merits, with guidance as to the legal principles, and with an acknowledgment that the ACLU was most likely to win at the trial court level.
The basis for the Supreme Court’s decision was that “COPA” is a content based regulation on speech over the Internet. Because it is content based, in order for it to be constitutional, in order to serve its goal, it must use the least restrictive means or alternatives. The Supreme Court concluded that based upon the record that they had in front of them, that “COPA” was not the least restrictive alternative but rather filtering and other technologies were less intrusive and actually most likely serves Congress’ purposes better than “COPA” did.
The Court analyzed “COPA” and its effects. The Court reasoned that should “COPA” be allowed to stand as law, it would act as a prior restraint on many constitutional communications that could go over the Internet. It would have the affect of scaring people away from posting on the Internet for fear that minors would view the materials and therefore they could be criminally punished. The Court concluded that these infringements could only stand if in fact “COPA” was the least restrictive alternative.
The Court pointed out that based upon the evidence before them, it appeared that filters and other technologies actually served Congress’ interests better. It pointed out that one of the exceptions to the “COPA” was the fact that if the ordering of the adult material over the Internet was done by credit card that you would be exempted from “COPA” or the criminal penalties thereof. Yet, the Court also acknowledged that many minors have credit cards and therefore the exemptions for criminal conduct under “COPA” seemed to almost defeat the purpose of “COPA” The Court concluded that at the time of their reviewing the information they had before them from the District Court’s record, that it appeared that filters and other blocking technologies actually could be used better to prevent minors from viewing adult material on the Internet while not limiting adult access to the same constitutionally protected material.
In essence, the Court concluded that criminalizing constitutionally protected expression being disseminated on the Internet, could not be justified just because of Congress’ desire to protect children. Rather, the Supreme Court concluded that when other alternatives are available, free speech should not be curtailed to consenting adults, when other means are available to protect children.
As has been stated above, this case has been sent back to the District Court for trial. When and if that trial takes place, we will keep you informed of the results. However, for the time being, the Internet again remains safe for adult communications to be sent between adults without the need for fear that a crime would be committed should a child receive that communication.
On another note, this summer is no different than any other summer. Daniel Aaronson just got back from “Lifestyles” in Las Vegas. For those of you who do not know, “Lifestyles” is the largest swingers convention in the world.
At that convention, Daniel Aaronson gave a lecture on sexual crimes. He spoke extensively on last year’s decision by the United States Supreme Court in the case of Lawrence v. Texas, a case which has established countrywide the right of consenting adults to engage in sexual acts of their choosing, regardless of sexual orientation, in private settings.
Next month, Daniel Aaronson and James Benjamin are scheduled to go to Las Vegas once again to take part in the “Gentlemen’s Club Exposition”. As always, we will keep you informed of what transpires at this convention.
Lastly, in mid-August, the First Amendment Lawyers Association will be holding its semiannual meeting. This time the meeting is in Portland, Oregon. The incoming President of the First Amendment Lawyers’ Association is James S. Benjamin. We are very proud of his accomplishments.