Ashcroft v. American Civil Liberties Union.

AuthorReid, Ronald Patrick
PositionChildren and Internet pornography


Reasonable men might well be forgiven for assuming that a United States Supreme Court decision dealing with children and Internet pornography would entail some titanic clash of the fundamental principles of the opposing partisans. One might fairly expect to see in such a case the champions of unfettered freedom of expression ranged in full array against their arch-enemies, a loose amalgam of Calvinists, Nazis, and sundry other notorious book-burners. Sadly, the Court's recent holding in Ashcroft v. American Civil Liberties Union has deftly averted any such rhetorical Armageddon. (1)

Ashcroft began its tortured existence in late October of 1998, when a number of plaintiffs who either operated sites on the World Wide Web, or provided content for such sites, filed suit in the United States District Court for the Eastern District of Pennsylvania. The plaintiffs alleged that the Child Online Protection Act (COPA), recently passed by Congress, violated their First Amendment speech rights. The ACLU and its allies therefore sought a preliminary injunction to prevent the government from enforcing the act before the case could be tried on the merits. (2)

Enacted by Congress in 1998, COPA's chief object was to restrict children's access to pornography on the World Wide Web by prohibiting "any communication for commercial purposes ... [of] ... any material that is harmful to minors." (3) Under the terms of the Act, the question of whether material was "harmful to minors" was to be determined by the jury on the basis of "contemporary community standards." (4) Nevertheless, the district court held that, because COPA constituted content-based regulation of "sexual expression ... protected by the First Amendment," the statute was "presumptively invalid." The court therefore issued the requested injunction. (5)

The Third Circuit Court of Appeals proved equally unsympathetic to the government. In affirming the district court's judgment, the Third Circuit noted that operators of Web sites possessed no means by which to limit geographically the dissemination of their material. Consequently, the use of community standards to judge whether material was harmful to minors would "[impose] an impermissible burden on constitutionally protected ... speech," since "the most puritan community in any state" would, perforce, become the arbiter of decency on the Internet. (6)

A plurality of a deeply divided Supreme Court disagreed, however, and held that "COPA's reliance on community standards to identify material 'harmful to minors' does not by itself render the statute overbroad for purposes of the First Amendment." The Court accordingly vacated the Third Circuit's judgment and remanded the case, though it left the injunction undisturbed. (7)

Narrow and limited though it is, the Court's holding in Ashcroft is at least consistent with its established community standards jurisprudence The Court has held repeatedly, for example, that "requiring a speaker disseminating material to a national audience to observe community standards does not violate the First Amendment." (8) Furthermore, the Court has made abundantly clear the fact that neither variations in community mores, nor technological limitations on a speaker's ability to direct his material, affects the speaker's duty to observe the standards of the communities into which he sends such material. (9)

While these earlier decisions generally dealt with community standards as applied to speech that was "obscene," and therefore unprotected, the same reasoning must also support the application of community standards in determining what is "harmful to minors." First, if this latter application of community standards is impermissible solely because of a Web site operator's inability to control the dissemination of his material, then the application of community standards to obscene material on the Web must be equally impermissible. The ultimate result would be to immunize Web site operators from prosecution even under otherwise valid and established obscenity laws. (10)

As well, the plurality rightly noted that publishers who fear running afoul of some hypothetical ultra-conservative community are at perfect liberty to publish their material through a medium that allows them better to control the distribution of that material. (11) Finally, COPA's test for material harmful to minors contains "limiting prongs" that substantially restrict both the character and the amount of the material that falls within the purview of the statute. (12) Thus, while the Court's decision in Ashcroft hardly represents a major blow for decency, it is nevertheless faithful to prior community standards jurisprudence, and is laudable for its consistency.

The first Part of this Note will outline COPA's main provisions, and will briefly summarize the Court's community standards jurisprudence. Part II will primarily relate the contentions and reasoning of the plurality, concurring, and dissenting opinions. Part III assesses the significance of the Court's internal split on the desirability of regulating Internet speech through the use of "contemporary community standards."


  1. The Child Online Protection Act

    Congress's efforts to restrict minors' access to Internet pornography began in 1996, when it passed the Communications Decency Act (CDA). (13) The CDA prescribed a prison term of up to two years for any person who knowingly used the Internet to transmit any obscene "comment, request, suggestion, proposal, image or other communication" to any person under eighteen years of age. (14) The same penalty attached for the knowing transmission to a minor of any other "communication that ... depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." (15)

    The CDA proved short-lived, however. Shortly after its enactment, the statute fell to a First Amendment challenge in Reno v. American Civil Liberties Union. In Reno, the Court held that the CDA was unconstitutional, since it "effectively [suppressed] a large amount of speech that adults [had] a constitutional right to receive." (16) In reaching its decision, the Court was guided by "three crucial considerations": 1) the inability of Web site operators to deny access to minors without also denying access to adults; 2) the fact that "the breadth of the CDA's coverage [was] wholly unprecedented," since it applied to both commercial communications and to nonprofit entities and individuals; (17) and 3) the affirmative defenses provided for in the CDA were insufficient to "save an otherwise patently invalid constitutional provision." (18)

    Responding to the Court's rebuff, Congress next passed the Child Online Protection Act. Although intended to serve the same ends as the CDA, COPA differed from the earlier statute in several respects. First, the scope of COPA's coverage was limited to communications on the World Wide Web, (19) and then only to those communications "[made] ... for commercial purposes." Furthermore, COPA prohibits only the knowing transmission of material that is "obscene" or "harmful to minors," thus avoiding the CDA's broad ban on material deemed "indecent" or "patently offensive." (20)

    More importantly, COPA, unlike its predecessor, carefully defines the material that it seeks to prohibit. The Act specifies that "material that is harmful to minors" means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that

    (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest.

    (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast...

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