Cyberporn and censorship: constitutional barriers to preventing access to Internet pornography by minors.

• Author: Simon, Glenn E.
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Reno v. ACLU,(1) the Supreme Court ruled on the constitutionality of two provisions of the Communications Decency Act of 1996.(2) Congress enacted the Communications Decency Act (CDA) in order to curtail the dissemination of pornography to minors via the Internet.(3) The Court found two provisions of the CDA to be unconstitutional due to their vagueness and the chilling effect their application would have on Internet communications.(4)

   This Note concludes that the Court's holding was correct in light of established First Amendment precedent. The Court's application of strict scrutiny(5) was proper given the importance of the right to free expression. While the Government has a legitimate and compelling interest in protecting minors from sexually explicit material that may be harmful to them,(6) the CDA was not narrowly tailored to conform to the Government's narrow prerogative in this area.(7)

   This Note argues that any future attempt to regulate sexually explicit Internet transmissions must be drafted with sufficient specificity such that no ambiguity exists as to the scope of its enforcement.(8) This Note also rejects the Government's stance that regulation of Internet pornography is justified as an exercise of its zoning power. The interpretation of the CDA under a zoning paradigm undermines the foundations of free expression and violates the Equal Protection Clause of the Fourteenth Amendment.(9)

2. BACKGROUND

   In recent years, the Supreme Court has struggled to prevent access by minors to speech that may harm them, while safeguarding the First Amendment right of adults to engage in nonobscene speech. The Court has addressed the constitutionality of restricting the rights of minors to access constitutionally protected speech(10) in a variety of fora.(11) Generally, the Court measures the Government's interest in protecting minors from harmful speech relative to the ease with which minors can access that speech.

   1. RELEVANT PRECEDENT

      1. Unprotected Speech

         It is well established that the Government lawfully may impose different regulations on minors than it does on adults. In Ginsberg v. New York,(12) the Court upheld the constitutionality of a New York statute(13) forbidding the sale to minors under age seventeen of material considered obscene as to them, although not necessarily obscene for adults.(14) However, the Government does not have unlimited regulatory powers to protect minors. When a statute has the effect of restricting adults to viewing only material suitable for children, it will be stricken down.(15)

         Although Congress cannot prevent adults from viewing material inappropriate for minors, it does have the authority to limit adult access to material that is obscene,(16) transmitted in an inappropriate context,(17) or that creates harmful secondary effects.(18) For example, in Miller v. California,(19) the Court reviewed the conviction of an individual who mailed unsolicited, sexually explicit material in violation of California law.(20) The Court in Miller-constructed the modern definition of "obscene"(21):

         [t]he basic guidelines for the trier of fact must be: (a) whether "the

         average person, applying contemporary community standards" would find

         that the work, taken as a whole, appeals to the prurient interest; (b)

         whether the work depicts or describes, in a patently offensive way, sexual

         conduct specifically defined by the applicable state law; and (c) whether

         the work, taken as a whole, lacks serious literary, artistic, political,

         or scientific value.(22)

         The Supreme Court views obscenity as completely outside the scope of the First Amendment's protection, and the Government may regulate speech freely as long as the Miller test is fulfilled.(23)

      2. Regulation of Speech on Particular Media

         Furthermore, the fact that speech is not obscene is not necessarily sufficient to preclude Government regulation. The Supreme Court has allowed the Government to restrict speech in various media where the fundamental nature of the media make such restrictions acceptable.(24) In FCC v. Pacifica Foundation,(25) the Court held that the radio broadcast of a monologue entitled Filthy Words, previously delivered to a live audience by Comedian George Carlin, "`could have been the subject of administrative sanctions."(26) The Federal Communications Commission (FCC) determined that the monologue was patently offensive and indecent as aired,(27) because it involved the repeated use of words referring to excretory or sexual activities or organs "in an afternoon broadcast when children are in the audience."(28)

         The Pacifica plurality stated that regulation dependent On the content of speech does not violate the First Amendment per se.(29) Instead, the context of the broadcast is critical in determining the scope of constitutional protection.(30) Noting that broadcasting traditionally has received the most limited First Amendment protection,(31) the Court concluded that the ease with which children may listen to the radio weighed against the constitutional protection of indecent broadcasts.(32) It is therefore constitutional to proscribe indecent, non-obscene speech when such speech is transmitted through a medium readily accessible to children.

         However, in Sable Communications of California, Inc. v. FCC,(33) the Supreme Court refused to uphold a ban on indecent "dial-a-porn" telephone communications.(34) Sable Communications, a provider of sexually oriented prerecorded messages, brought suit to enjoin enforcement of 47 U.S.C. [sections] 223(b).(35) The 1988 amendment to [sections] 223(b) of the Communications Act of 1934 created an outright ban on indecent or obscene interstate commercial telephone messages.(36) Applying strict scrutiny, the Court found that the statute was not sufficiently narrowly drawn to serve the Government's compelling interest in protecting minors.(37) Furthermore, the Court distinguished Pacifica on the basis that it involved the unique attributes of broadcasting, and did not mandate a complete ban.(38) In Pacifica, there was a risk that listeners would hear Carlin's monologue by accident. In contrast, the probability that one would fortuitously encounter an indecent telephone message is reduced substantially by the affirmative steps one must take to access those messages.(39)

         Most recently, in Denver Area Education Telecommunications Consortium, Inc. v. FCC,(40) the Supreme Court considered the constitutionality of three portions of the Cable Television Consumer Protection and Competition Act of 1992,(41) each attempting to regulate programming on cable television.(42) The first of these regulations, [sections] 10(a), allowed cable operators to ban patently offensive material on leased access channels.(43) The second, [sections] 10(c), authorized the same bans for public access channels.(44) If cable operators did not take advantage of these provisions, [sections] 10(b) mandated that they place all patently offensive programming on a single channel, and only allow customers to access that channel after providing written authorization.(45)

         The Denver Area Justices could not settle upon a single level of scrutiny to apply, and the Court's decision came down as a patchwork of shifting pluralities. When the dust settled, the leased access provision ([sections] 10(a)) was held constitutional,(46) the public access provision ([sections] 10(c)) was held unconstitutional,(47) and the provision mandating segregation of patently offensive material ([sections] 10(b)) also was held unconstitutional.(48) Denver Area clearly illustrates the Court's continuing willingness to engage in medium-specific analysis--evaluating regulations within the context of the medium affected and adjusting the standard of review accordingly.(49)

      3. Content-Neutral Regulations

         Using a wholly different mode of analysis, the Court upheld a zoning ordinance that prevented adult movie theaters from opening in residential neighborhoods in City of Renton v. Playtime Theatres, Inc.(50) The Court acknowledged the district court's finding that the ordinance was aimed not at the content of the films shown in the theaters, but rather at the impact such establishments have on their surrounding neighborhood, including rising crime rates and deteriorating property values.(51) The Court upheld the statute, holding that a state has a legitimate interest in protecting property values and discouraging crime, and therefore may proscribe speech to serve these interests as long as the content of the restricted speech is not considered.(52) The Court was explicit in limiting its holding only to statutes that combat the "secondary effects" of speech without regard to its content.(53)

         Had the regulation instead been found to be "content-based," firmly established principles would have made it presumptively invalid. Six years later, in R.A.V. v. City of St. Paul,(54) the Court addressed a St. Paul ordinance(55) proscribing the use of symbolic speech, "which one knows or has a reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender. . . ."(56) The defendant was prosecuted for burning a cross in the yard of an African-American family.(57) The Court struck down the ordinance, noting that it allowed individuals to engage in insulting or violence-provoking speech as long as such speech was not directed to one of the enumerated disfavored topics.(58) Justice Scalia stated that "[t]he First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed."(59) Thus, in order to survive constitutional review, a statute restricting protected speech must be directed at factors extrinsic to the content of the message, rather than at the viewpoint expressed.(60)

   2. THE COMMUNICATIONS DECENCY ACT OF 1996

      Against this backdrop of First Amendment case law,(61) Congress passed the Communications...