Round Two: Cyber-Censorship Returns to Supreme Court

October 1, 2001

Statement of Ann Beeson,
ACLU National Staff Attorney

WASHINGTON--Ashcroft v. ACLU (00-1293) is a First Amendment challenge to the Child Online Protection Act ("COPA"), Congress' second attempt to impose severe criminal and civil sanctions on the display of protected, non-obscene speech on the Internet. COPA targets speech on the World Wide Web that is harmful to minors according to "contemporary community standards." The first attempt to restrict protected speech on the Internet -- the Communications Decency Act ("CDA") -- was declared unconstitutional by all nine justices of the Supreme Court in Reno v. ACLU ("ACLU I").

The ACLU argues that COPA suffers from the same defects as the CDA because it effectively suppresses a large amount of speech on the World Wide Web that adults are entitled to communicate and receive.1 The CDA made it a crime to communicate material that was "indecent" or "patently offensive" on the Internet. 47 U.S.C. § 223(a), (d)(1). COPA makes it a crime to communicate material on the Web for commercial purposes that includes any material that is "harmful to minors." 47 U.S.C. § 231(a)(1).

Because violations of COPA, like the CDA, could result in jail time, the law presents a very strong risk that speakers will remain silent rather than communicate even arguably lawful words, ideas, and images. Both statutes effectively prevent adults from receiving speech because there is no way to prevent minors from obtaining communications on the Web without also deterring and burdening access by adults. Both contain nearly identical affirmative defenses that protect only speakers who can prove they restrict prohibited content by requiring a credit card or adult access code; trial courts in both cases found that these defenses do not cure the statutes' censorship of protected speech.

Like the doomed CDA, COPA targets a wide range of speech on the Web that is valuable for adults but may be considered harmful to minors by some communities. Some examples from the plaintiffs' web sites are:

* ArtNet, a leading online vendor of fine art, displays photographs from Andres Serrano's series "A History of Sex" on its Web site;

* The Sexual Health Network provides information to disabled persons about how they can experience sexual pleasure;

* A Different Light Bookstore's site contains an article describing a gay author's first experience of masturbation;

* Salon Magazine includes a column by sexpert Susie Bright which describes her sexual experiences.

COPA, which imposes penalties of up to $150,000 for each day of violation and up to six months in prison, was first enjoined in February 1999 by a federal court in Philadelphia. That court held that COPA was invalid because there is no way for Web speakers to prevent minors from harmful material on the Web without also burdening adults from access to protected speech.

Although COPA contains a defense if Web speakers restrict access by requiring a credit card or adult access code, the evidence clearly established that either defense would burden free speech, for at least five reasons:

* they deny access to all adults without credit cards;

* they require all interactive speech on the Web to be placed behind verification screens, even speech that is not "harmful to minors";

* they deter adults from accessing protected speech because they impose costs on content that would be free, eliminate privacy, and stigmatize content;

* they allow hostile users to drive up costs to speakers; and

* they impose financial burdens on speakers that will cause them to self-censor rather than incur those burdens.

The Third Circuit Court of Appeals affirmed in June 2000, finding that COPA was unconstitutional for an additional reason. "Because of the peculiar geography-free nature of cyberspace, [COPA's] community standards test would essentially require every web communication to abide by the most restrictive community's standards," wrote the circuit court.

Material is prohibited under COPA if it is considered "patently offensive" according to local community standards for what is harmful to minors. As the record in the trial court illustrated, Web speakers have no way to determine the characteristics of their audience---whether age or geographic location. Just as the inability under COPA to verify age on the Web transforms a standard aimed at minors into one that censors adults, the inability to verify the geographic location of Web users transforms COPA's "community standards" requirement into a national mandate of the most restrictive community's standards.

The government argues that the "community standards" test does not unduly burden speech because standards for what is "harmful to minors" have become "reasonably constant" across America. It provided no evidence of this at trial, and many factors indicate the opposite. For example, the government now asserts that some of the plaintiffs' speech is harmful to minors under COPA, while Members of Congress who supported COPA have filed a brief arguing that none of the plaintiffs' speech is covered by the law.

In addition, a number of surveys show that attitudes about providing sex education materials to children, or information about sexual orientation, vary widely by region within the U.S. Thus, while workable in narrow circumstances for other media, the "community standards" test unconstitutionally restrict adults from communicating and accessing protected speech on the Web.

Ultimately the government's only argument is that COPA should be upheld because it is not quite as censorious as the CDA. But a law banning books does not become constitutional because it is re-written to remove only every other book on the shelves.

Never before has there been a federal criminal harmful-to-minors law for any medium--COPA is the first. While some states prohibit the display of such materials in the print medium, the censorship effect of COPA is tremendous because of the unique qualities of the online medium. The government completely ignores all of the recent cases rejecting these state statutes as unconstitutional when applied to the Internet -- in New York, New Mexico, Michigan, and Virginia.

The Supreme Court should reject COPA's radical new federal censorship regime and continue to protect the vast democratic forum of the Internet. As the Court said when it invalidated the CDA: "As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

The 17 plaintiffs represented in Ashcroft v. ACLU are: the American Civil Liberties Union (on behalf of all its members, including Nadine Strossen, the poet Lawrence Ferlinghetti, Patricia Nell Warren, Mitchell Tepper and David Bunnell); A Different Light Bookstore; American Booksellers Foundation for Free statement; ArtNet; The Blackstripe; Condomania; Electronic Frontier Foundation (on behalf of all its members, including Bill Boushka, Jon Noring, Open Enterprises Cooperative and Rufus Griscom); Electronic Privacy Information Center; Free Speech Media, LLC; Internet Content Coalition; OBGYN.NET; Philadelphia Gay News; PlanetOut Corporation; Powell's Bookstore; RIOTGRRL; Salon Magazine; and Weststock.com.

Six friends-of-the-court briefs were also filed to urge the Supreme Court to invalidate COPA. Their authors include the Chamber of Commerce of the United States, the Society for the Scientific Study of Sexuality and other sex research groups, Volunteer Lawyers for the Arts and People for the American Way, the Association of American Publishers and others, and the Association of National Advertisers. The American Society of Journalists and Authors, along with other groups threatened by COPA, also submitted an amicus brief on CD-ROM which contains links to a variety of valuable sites that could risk criminal prosecution under the law.

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