TO: Interested Persons
FROM: Ronald Weich, ACLU Legislative Consultant
DATE: June 16, 1999
RE: Constitutionality of Section 2 of H.R. 2036
Congressman Hyde has introduced H.R. 2036, section 2 of which proposes new criminal penalties for speech deemed unsuitable for minors. For the reasons described below, the American Civil Liberties Union believes that this provision is facially and outrageously unconstitutional. It proposes much more sweeping censorship than the Communications Decency Act unanimously struck down by the Supreme Court in Reno v. ACLU, 117 S. Ct. 2329 (1997).
I. Scope of the section 2 of H.R. 2036
Section 2 of H.R. 2036 would establish a new federal crime penalized by imprisonment of up to five years for a first offense and ten years for a second offense for anyone who "knowingly and for monetary consideration, sells, sends, loans, or exhibits directly to a minor, any picture, photograph, drawing, sculpture, video game, motion picture film, or similar visual representation or image, book, pamphlet, magazine, printed matter, or sound recording, or other matter of any kind containing explicit sexual material or explicit violent material. The material covered by the bill encompasses that which "(1) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal or pander to the prurient, shameful or morbid interest; (2) the average person, applying contemporary community standards, would find the material patently offensive with respect to what is suitable for minors; and (3) a reasonable person would find, taking the material as a whole, lacks serious literary, artistic, political, or scientific value for minors."
The scope of this new crime is exceedingly broad. Notably, it includes words as well as pictures. It applies to virtually all forms of literary and visual communications including books, magazines, movies, photographs, and even to artistic media such as sculpture. The Communications Decency Act sought to regulate speech on the Internet; in contrast, H.R. 2036 would regulate the Internet as well as all of the other, more traditional means of communication. Essentially, section 2 constitutes a "Newspaper, Novel and Film Decency Act."
The class of individuals subject to the criminal penalties in section 2 is limited to those who exhibit material "for monetary consideration," but that term might be interpreted to include such non-commercial entities as museums that charge admission. Arguably even teachers, who after all receive compensation for their services, could violate the Act by making available to any minor any material deemed to fall within the Act's indecency standard. Significantly, parents cannot even consent to their children viewing material that others might consider unsuitable.
It is true that the statute requires the material to be "exhibit[ed]", but there is nothing suggesting that the exhibition must be for commercial purposes. In this context, the word "exhibits" is equivalent to the word "displays" -- the crime consists of merely showing indecent material to a minor. This approach is far broader than any previous attempt to regulate the speech made available to minors.
Also, because the term "knowingly" is defined in the bill to include someone who does not know the nature of the material or the age of the minor but who has "reason to know" such facts, it applies to individuals who sell or display their books or pictures to adults, but who should "have reason to know" that the communication will be seen by minors as well. Thus, all book publishers and movie distributors are potentially liable for disseminating their products into stores and theaters where minors might view them. Subsection (b) does contain an "honest mistake" defense, but it applies only to a mistake about the age of the minor, not about whether a minor would see the book or movie in question.
Finally, the term "sexual or violent material" is defined to include, inter alia, "a visual depiction of . . . or a detailed verbal description or narrative account of" "human male or female genitals, pubic area or buttocks with less than a full opaque covering", "acts of sexual intercourse", "physical contact with a person's clothed or unclothed genitals, pubic area, buttocks [or] breasts", "sadistic or masochistic activity" and rape. This is far broader than the classic definition of obscenity crafted by the Supreme Court in cases such as Miller v. California, 413 U.S. 15, 33 (1973). Under this broad definition, a movie that depicted partial nudity, a photograph of one athlete patting his teammate on the buttocks, or a novel that merely described a human body in detail, could all fall within the definition of the Act. A jury would have to sort out later whether the depiction appealed to prurient interests and was without redeeming social value, but such everyday images and narratives would potentially be criminalized by section 2 of the bill.
II. Relevance of Reno v. ACLU
Section 2 bears substantial resemblance to the Communications Decency Act in that it seeks to criminalize indecent but not obscene speech, and seeks to establish a new, less exacting obscenity standard for minors. (CDA prohibited the transmission of obscene or indecent communication on the Internet to any recipient less than 18 years of age, as well as sending or displaying "patently offensive" messages in a manner available to a person less than 18.) But unlike CDA, which was limited to material on the Internet, section 2 applies to the Internet as well as to books, movies, photographs and other traditional forms of communications. And whereas CDA contained an affirmative defense for defendants who took "good faith, reasonable, effective, and appropriate actions" to restrict access by minors to the prohibited communications, section 2 contains no such defense except as to an honest mistake about the age of the minor; it is virtually a strict liability crime for anyone whose "indecent" material is inadvertently viewed by children.
CDA, of course, was immediately challenged by the American Civil Liberties Union and nineteen other plaintiffs. A special three-judge District Court unanimously found that both the "indecent transmission" and "patently offensive display" provisions of the Act were facially unconstitutional, American Civil Liberties Union v. Reno, 929 F. Supp. 824, 849 (E.D. Pa. 1996), and the Supreme Court unanimously affirmed. Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997). The Court found that "the CDA places an unacceptably heavy burden on protected speech, and . . . the defenses do not constitute the sort of 'narrow tailoring' that will save an otherwise patently invalid unconstitutional provision." Reno, 117 S. Ct. at 2350. After the Supreme Court struck down CDA, Congress passed the Child Online Protection Act (COPA), essentially an attempt to revive restrictions on indecent Internet speech within the bounds of Reno. COPA would impose criminal and civil penalties for the distribution of material considered "harmful to minors," unless the speakers "restrict[s] access" to such material to anyone under the age of 17. The measure applies to anyone "engaged in the business of the commercial distribution of material" deemed "harmful to minors." COPA itself has been preliminarily declared unconstitutional by a federal district court in Philadelphia.
Since section 2 of H.R. 2036 is so much broader than CDA and COPA, there is every reason to believe that it too would be declared an unconstitutional abridgement of freedom of speech.
III. Basis for concluding that section 2 is unconstitutional
The First Amendment bars Congress from abridging the Freedom of Speech. There is no general exception to the Amendment for material that is not suitable for minors. Section 2 of H.R. 3026 simply flies in the face of long established constitutional principles of free speech.
At the heart of the First Amendment lies the constitutional sanctity of the "free trade in ideas." As Justice Holmes noted, "the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . ." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). Section 2 would impose a criminal prohibition on protected speech in violation of the First Amendment, and would violate the bedrock principles upon which the First Amendment is based.
Content-Based Regulation of Protected Speech Violates the First Amendment.
At the outset, it is important to understand that section 2 would make criminal the transmission of constitutionally protected speech, not obscenity. The transmission of obscenity and child pornography is already illegal under federal law. Reno, 117 S. Ct. at 2347 n.44 (reiterating that obscenity and child pornography do not constitute protected speech under the Constitution); see 18 U.S.C. §§ 1464-1465 (1948) (criminalizing obscenity); 18 U.S.C. § 2251 (1978) (criminalizing child pornography). Indeed, prior to passage of CDA, the Government stated that existing laws were sufficient for "its ongoing efforts to prosecute obscenity, child pornography, and child solicitation." Reno, 117 S. Ct. at 2347 n. 44 (citing 141 Cong. Rec. S8342 (June 14, 1995) (letter from Kent Markus, Acting Assistant Attorney General, U.S. Department of Justice, to Sen. Leahy)).
Section 2 is also not about content-neutral or "time, place and manner" regulations of speech -- such as laws regulating the volume of sound trucks on public streets, Kovacs v. Cooper, 336 U.S. 77 (1949), or an ordinance requiring permits for public addresses on public property, Commonwealth v. Davis, 39 N.E. 113 (Mass. 1895), aff'd sub nom. Davis v. Massachusetts, 167 U.S. 43 (1897).
Instead, the Hyde bill amounts to content-based regulation of protected speech -- that is, an effort by the government to interfere actively in the "marketplace of ideas" and suppress certain protected speech based on its content. The Constitution clearly protects speech that is not obscene even if that speech may be considered "indecent," "harmful to minors" or "unsuitable for minors." Section 2 subjects individuals to criminal sanctions on account of protected speech and is therefore untenable under the First Amendment.
Print media is accorded nearly absolute protection from content-based regulation. Although the Supreme Court has upheld a ban on the sale of magazines to children where the magazine content was considered "obscene" as to children, Ginsberg v. New York, 390 U.S. 629, 638 (1968), such a ban can not infringe upon protected speech between adults. Reno, 117 S. Ct. at 2341 (rejecting an argument that Ginsberg justified CDA). At least as to books, magazines and other print media, section 2 may be per se unconstitutional.
But even if not per se unconstitutional, Section 2 implicates core First Amendment values and must, at a minimum, pass the "most exacting scrutiny" to insure that it does not "penalize a substantial amount of speech that is constitutionally protected." Forsyth County v. Nationalist Movement, 505 U.S. 123, 129-30 (1992). Content-based regulations of speech will be upheld only when they are justified by "compelling" governmental interests and are "narrowly-tailored" to effectuate those interests. See Turner Broadcasting, 114 S. Ct. at 2455; Simon & Schuster, Inc. v. New York State Crimes Victims Bd., 502 U.S. 105 (1992); Sable Communications of California v. FCC, 492 U.S. 115, 126 (1989); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983). Surely as to print media, the sweeping censorship embodied in section 2 fails this test.
As to broadcast media, the Supreme Court has held regulation to be permissible under limited circumstances. The Reno Court observed the long history of government regulation of broadcast media that developed due to the "scarcity of available frequencies," and the "invasive" nature of broadcast media. Id. at 2343. But the very reason why some content regulation of broadcast media is permissible explains why no content regulation of non-broadcast media is permissible. Unlike broadcast television and radio stations with their limited number of frequencies, access to the other media regulated by section 2, including the Internet, is virtually unlimited.
Proponents of Section 2 may attempt to avoid strict scrutiny by styling the proposed legislation after the statute at issue in Ginsberg v. New York, 390 U.S. 629 (1968), which regulated speech only to the extent that it was obscene as to minors. Id. at 638. But the Reno court distinguished Ginsberg, noting that "'the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.'" Reno, 117 S. Ct. at 2341 (quoting Ginsberg, 390 U.S. at 639). Under CDA "neither the parents' consent -- nor even their participation -- in the communication would avoid the application of the statute." Reno, 117 S. Ct. at 2341. That is also true under the criminal statute proposed by section 2.
Nor is section 2 a mere content-neutral zoning regulation not subject to strict scrutiny. In Renton v. Playtime Theaters, 475 U.S. 41 (1986), the Supreme Court evaluated a zoning ordinance that kept adult movie theaters out of residential neighborhoods on a rational basis rather than a strict scrutiny standard because it was aimed at the "secondary effects" of the theaters -- crime and deteriorating property values --- rather than content. 475 U.S. at 49. But "secondary effects" of the speech prohibited by section 2 are irrelevant because there are no real property interests to protect. The proposed legislation is squarely directed at the effect of speech on listeners, and these "listeners' effects" are not content-neutral. "Regulations that focus on the direct impact of speech on its audience" are not properly analyzed under Renton. Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992).
Moreover, violations of zoning regulations typically result in only civil rather than criminal penalties. In addition to the opprobrium and stigma of a criminal conviction, section 2 threatens violators with substantial periods of imprisonment. The severity of these criminal sanctions "may well cause speakers to remain silent rather than communicate even arguably lawful words, ideas, and images." Reno, 117 S. Ct. at 2329. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 494 (1965). The application of criminal penalties to protected speech unduly burdens the First Amendment.
Section 2 simply fails to satisfy the strict scrutiny test.
As noted above, content-based regulations of protected speech must be strictly scrutinized to determine if they are justified by "compelling" governmental interests and are "narrowly-tailored" to effectuate those interests. The Supreme Court applies strict scrutiny to content-based regulations because "[a]t the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broadcasting, 114 S. Ct. at 2458.
Notwithstanding the government's stated goal of protecting children, section 2 cannot withstand strict scrutiny because it has not been narrowly tailored and, as a result, is overbroad in several critical respects. First, section 2 operates as a flat ban on some protected speech between adults and as such it is overbroad. Section 2 is overbroad because in the course of punishing activities that are not constitutionally protected, the statute impinges upon constitutionally protected speech. Although section 2 targets speech which is not "suitable for minors," such speech constitutes protected speech when communicated between adults.
Second, section 2 fails the Supreme Court's "narrowly-tailored" test because it bans speech that has clear value for some minors, and is therefore protected when directed to them. Section 2 does not distinguish between material that may be harmful to a six-year-old but valuable for a 16-year-old, such as safer sex information. For example, teenagers who are located in isolated parts of the country can now use the Internet to learn about AIDS and other sexually-transmitted diseases. Although this information might be available from local adults or at a library or book store, a teen may be too embarrassed to ask for the book. Under section 2, valuable information will be unavailable to sixteen year olds, and the failure to distinguish between material that may be "harmful" to a six-year-old but valuable for a sixteen-year-old is constitutionally fatal.
Also, section 2 simply fails to include an exception for an emancipated minors. Therefore, although a married 16 year old may need or want information which is subject to the ban under section 2, providing such information to that individual is subject to criminal sanction.
The Reno Court flatly refused to endorse an argument that would permit such a "blanket prohibition" on indecent speech directed at minors. Reno, 117 S. Ct. at 2348 ("It is at least clear that the strength of the Government's interest in protecting minors is not equally strong throughout the coverage of this broad statute."). Section 2 fails to distinguish between materials which are inappropriate for younger minors from those which are inappropriate for older teenagers. It therefore sweeps too broadly.
Moreover, the bill's "suitable for minors" standard fails to redress this problem. The bill targets speech that is deemed to be without redeeming social importance for minors, but that is too amorphous a concept to survive First Amendment scrutiny. Speakers simply cannot be sure that their information will be found to possess "serious" value. The threat of criminal sanctions makes this uncertainty in the application of the "harmful to minors" standard constitutionally intolerable. See Dombrowski v. Pfister, 380 U.S. 479, 494 (1965).
In essence, section 2 places a criminal ban on sharing with minors constitutionally protected speech among adults, but the bill's proponents fail to account for the chilling effect this ban will have on communications among adults. The Reno Court reiterated the long-standing First Amendment rule that prevents the government from "reduc[ing] the adult population . . . to . . . only what is fit for children." Reno, 117 S. Ct. at 2346 (quoting Denver Area Educ. Television Consortium v. FCC, 116 S. Ct. 2374, 2393 (1996) (citations omitted)). Even under the guise of protecting children, the government may not justify the complete suppression of constitutionally protected speech. See Butler v. Michigan, 352 U.S. 380, 383 (1957) (invalidating a conviction for distribution of indecent publications).
Similarly, in Sable Communications v. FCC, the Court struck down a total ban on indecency in phone communications because it had the "effect of limiting the content of adult [communications] to that which is suitable for children." Sable, 492 U.S. at 131. Indeed, because "[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox," the Supreme Court has never upheld a criminal ban on indecent speech. Bolger, 463 U.S. at 74 (striking down a ban on mail advertisements for contraceptives). Applying these well-established precedents to section 2 reveals that the measure is flatly unconstitutional.
Section 2 is Unconstitutionally Vague
A separate constitutional flaw in section 2 is that it is unacceptably vague and therefore does not put individuals on fair notice of the conduct - in this case the speech - that will subject them to criminal penalties. The provision effectively requires all publishers, authors and artists to determine, before they speak, whether their statements are or could be construed as patently offensive in regard to minors. Given the uncertainty of that judgment, there is no doubt that many of these speakers will choose to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked. Grayned v. City of Rockford, 408 U.S. 104, 109 (1972).
Section 2 is also unconstitutionally vague because it fails to define the relevant "community" that will set the standard for what is "indecent." Assuming that the local standards would apply, national publishers and especially Internet speakers have no way of determining which local community provides the relevant standard. Speakers cannot always determine the geographic location of the persons who access their speech. In order to protect themselves from prosecution then all speakers would have to conform to the standards of the least tolerant community in the United States -- a result expressly rejected in Miller v. California, supra.
Conversely, if a national standard is found to apply, there is no way to properly account for the fact that "[p]eople in different States vary in tastes and attitudes. Miller v. California, 413 U.S. at 33. The long line of decisions interpreting the First Amendment have clearly enunciated a policy which dictates that "this diversity is not to be strangled by the absolutism of imposed uniformity." Id.
The vagueness of the bill is a matter of special concern for two reasons. As a criminal statute, section 2 must be scrutinized with extreme care for clarity because no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. Additionally, as a content based regulation of protected speech, the vagueness of the provision raises First Amendment concerns because of its obvious chilling effect on free speech.
For all of these reasons, section 2 of H.R. 2036 is plainly unconstitutional.