Ashcroft v. Aclu: Should Congress Try, Try, and Try Again, or Does the International Problem of Regulating Internet Pornography Require an International Solution?

• Publication year: 2004
• Citation: Vol. 6 No. 2004

Kate Reder⁰

Confused by the misinformed chatter of his peers and ambiguous information in his limited sex-education course at school, a fifteen-year old boy in middle America sits down at his computer. He conducts a search for information using the term "safe sex." His parents, out of concern for their children, have installed a filtering device and set it to its highest level. The boy's search comes back spotty at best. He has no idea that 50% of safe-sex health sites, including those endorsed by search engines as responsible and informative, have been filtered out.¹

I. Introduction

In its decision in Ashcroft v. ACLU,² the Supreme Court held that the Attorney General had not convincingly rebutted the contention of plaintiff Internet content providers that filtering software was less restrictive and just as effective as the legislation Mr. Ashcroft sought to defend.³ The Supreme Court was correct to uphold the preliminary injunction against the Child Online Protection Act⁴ ("COPA"), but the Court, by reading the legal issue narrowly,⁵ left the American public with the lesser of two evils instead of a genuine solution. while the holding is correct in a strictly legal sense, the decision does very little to protect either children or the First Amendment.

This Recent Development traces Congress' reaction to Internet pornography, using Ashcroft v. ACLU as a case study to illustrate the pattern Congress traditionally follows: tailoring subsequent legislation to the specifications of Supreme Court decisions. This Recent Development argues that following Congress' pattern in this case will only lead to further litigation because filters, the solution proposed in Ashcroft, along with any national solution, will have a negative impact on free speech rights. This Recent Development concludes that in order to protect both children and the First Amendment, the Internet pornography industry must be treated as just that: an international industry. By urging the Internet pornography industry to accept "best practice guidelines," the United States government will be protecting children and the guarantees of the First Amendment.

II. At What Cost? Keeping Internet Pornography from Minors

The problem of minors accessing Internet pornography is international;⁶ to ignore that the problem is international allows "solutions" that infringe on free speech rights guaranteed by the First Amendment. Filtering technology is very restrictive.⁷ Even though it may be less restrictive than what was proposed in COPA,⁸ a child's search for information on "breast cancer" or "depression" may be hampered as a result of the artificial intelligence used to filter.⁹ While parents have a right to restrict what their children see,¹⁰ this right is not especially advanced by either COPA or filters; a solution requires international agreements. The United States, along with the global community, needs to foster best practice guidelines¹¹ and the use of clear markings in the online pornography industry. For example, the suffix .xxx has been proposed for use in pornographic websites instead of .com.¹²

As long as the Court leads Congress to believe that legislation will be the answer, Congress will likely continue molding legislation to the specifications of the Supreme Court's decisions.¹³ COPA marks Congress' second attempt to make the Internet safe for minors in the home.¹⁴ It was drafted in reaction to, and in strict compliance with, the Supreme Court's holding in Reno v. ACLU¹⁵ If Congress responds to the decision in Ashcroft by drafting yet another piece of legislation based on the specifications of this decision, it may encounter the same problem as did COPA. The Court will likely find that challengers of such legislation can suggest less-restrictive means and perhaps an international solution.¹⁶ Any future legislation may consequently be struck down, again with neither children nor free speech any more protected. A national solution is always going to chill Internet speech because of the international nature of the Internet pornography community. Should the public be satisfied with a solution that merely chills speech comparatively less than other solutions, or should the public demand an approach that respects both the right of parents to protect their children and the First Amendment?

III. A History of Failure: Attempts to Protect Minors from Internet Pornography

A. The Communications Decency Act

The Communications Decency Act¹⁷ ("CDA") was Congress' first attempt to protect minors from Internet pornography. The American Civil Liberties Union ("ACLU") successfully challenged the CDA.¹⁸ Specifically, the ACLU took issue with two provisions of the CDA: (1) the criminalization of the knowing transmission of obscene or indecent communications to persons under eighteen,¹⁹ and (2) the ban on the knowing transmission to minors of any content that "depicts or describes, in terms patently offensive, as measured by contemporary community standards, sexual or excretory activities or organs."²⁰

The Supreme Court held that these provisions were in violation of the First Amendment of the United States Constitution.²¹ The Court rebuked Congress for the breadth of the CDA's coverage.²² The Court held that despite the affirmative defenses built into the act, including a good faith exception where an Internet pornography provider took reasonable steps to prevent minors from accessing his wares²³ and required proof-of-age,²⁴ the impact on speech was too great, and the affirmative defenses not sufficiently narrowly-tailored.²⁵

B. The Child Online Protection Act

Congress constructed COPA based on the specifications outlined in the Reno decision.²⁶ Where the CDA applied to all Internet communications, including email, COPA only applies to material on the World Wide Web.²⁷ Additionally, unlike the CDA, COPA only applies to communications made for commercial purposes. COPA imposes criminal penalties of a $50,000 fine and six months in prison for knowingly posting, for "commercial purposes," content that is "harmful to minors" on the World Wide Web.²⁸ Furthermore, where the CDA prohibited "indecent" and "patently offensive" communications, COPA restricts only the narrower category of material "harmful to minors."²⁹ In defining what is "harmful to minors," COPA uses "contemporary community standards."³⁰

In Ashcroft v. ACLU I,³¹ COPA's "contemporary community standards" received its first constitutional challenge.³² The Court held that COPA's reliance on community standards to identify material harmful to minors did not, by itself, render the statute substantially overbroad for purposes of the First Amendment.³³ While COPA withstood the "contemporary community standards" challenge, it was felled by filters in Ashcroft v. ACLU II.³⁴

IV. Another One Bites the Dust: Ashcroft v. ACLU II

The most recent challenge to COPA came to the Supreme Court via the United States Court of Appeals for the Third Circuit.³⁵ The Third Circuit upheld a preliminary injunction against enforcement of COPA based on the government's failure to rebut the plaintiff Internet providers' contention that filtering software was a plausible, less restrictive, and available alternative.³⁶ The United States Supreme Court held that preliminary injunctive relief was warranted on the basis of the failure by the Attorney General to rebut the providers' contentions.³⁷

In particular, the Court noted that filters impose selective restrictions at the receiving end, not universal restrictions at the source.³⁸ The Court also noted that filters could block foreign-source materials not subject to COPA.³⁹ The Court listed ways that filters are potentially more effective than COPA: Use of filters does not condemn any category of speech as criminal; filter use does not chill freedom of speech; COPA may encourage providers to move overseas; and minors may have their own credit cards.⁴⁰ Filtering, the Court pointed out, need not be perfect; it need only be better than COPA.⁴¹ While acknowledging that an argument exists that filters are not an available alternative because Congress may not require that they be used, the Court relied on the proven constitutionality of giving strong incentives to encourage their use.⁴²

Far from suggesting that filters are a panacea, the Court acknowledged that filters are "not a perfect solution to the problem of children gaining access to harmful-to-minors materials. A filter may block some materials that are not harmful to minors and may fail to catch some that are."⁴³ But again, the Court reasserted the burden: "Whatever the deficiencies of filters, . . . the Government failed to introduce specific evidence proving that existing technologies are less effective than the restrictions in CoPA."⁴⁴

The Court explained that "COPA presumes that parents lack the ability, not the will, to monitor what their children see" on the Internet.⁴⁵ The Court noted that by enacting programs to promote use of filtering software, Congress could give parents the control they seek without penalizing speech.⁴⁶ The primary precedent relied upon in this regard is the Supreme Court's decision in United States v. Playboy Entertainment Group.⁴⁷ In Playboy, the Court grappled with a content-based restriction designed to protect minors from viewing "harmful" materials.⁴⁸ The choice in that case was between a blanket speech restriction and a more specific technological solution that was available for case-by-case implementation by parents.⁴⁹ The Court held that absent a showing that the proposed less restrictive alternative would be less effective, the more restrictive option proposed by Congress could not survive strict scrutiny.⁵⁰

Interestingly, the majority concluded its opinion in Ashcroft II with a message of hope for Congress: "On a final point, it is important to note that this opinion does not hold that Congress is incapable of enacting any regulation of the Internet designed to prevent minors from...