Keeping Children from the Internet’s ‘red Light District’: Increased Regulation or Improved Technology?

• Jurisdiction: United States,Federal
• Citation: Vol. 3 No. 2001
• Publication year: 2001

Angela M. Xenakis⁰

I. Introduction

The Internet has revolutionized the world by providing virtually unlimited access to information and by creating a new medium for social interaction. While extremely advantageous, this unlimited access to information also leads to children being exposed to potentially harmful, sexually explicit material. With its vast number of sites, it is estimated that the World Wide Web contains more than one billion different Web pages.¹ Approximately fifteen million of these pages have pornographic content.² With this many sites, access to pornographic websites is only one click away, whether intentional or not. For example, if one accidentally types 'whitehouse.com' instead of 'whitehouse.gov,' one will end up at a pornographic website offering a free trial membership.³

By the year 2005, forty-four million children under the age of eighteen are expected to be using the Internet.⁴ As children's access to the Internet and the number of websites continue to grow, there is continual debate over what, if anything, should be done to shield children from these pornographic sites. Congress has repeatedly and, to date, unsuccessfully tried to regulate access to these sites by children. The debate centers on how best to protect children from pornography without violating free speech rights guaranteed in the First Amendment. In the end, the best solution may come from market forces and new technology instead of laws, since the unique nature of the Internet makes it extremely difficult to regulate.

II. Constitutionally Protected Free Speech

While some may believe that pornography is the ultimate bastion of free speech protected by the First Amendment, the Supreme Court has ruled otherwise.⁵ The Court has often struggled over the definition of obscenity; however, it has not moved away from the principle that obscenity is not protected speech and therefore can be regulated. In Miller v. California, the Court stated that it "recognized that the States have a legitimate interest in prohibiting the dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles."⁶

Miller outlined a three-prong test for what constitutes obscene material, which requires that (1) an "average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interests"; (2) the "work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and (3) the "work taken as a whole, lacks serious literary, artistic, political, or scientific value."⁷

In Ginsberg v. New York, the Supreme Court allowed analysis based on a different standard when the regulations were directed at protecting children. In Ginsberg, the Court upheld the District Court's finding that a state may regulate the sale of material that is harmful to minors under the age of seventeen, even if not obscene by adult standards.⁸ The New York statute in question prohibited material that "(i) predominantly appeals to the prurient, shameful, or morbid interest of minors, and (ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable materials for minors, and (iii) is utterly without redeeming social importance for minors."⁹

While the Supreme Court has upheld some laws that regulate indecent broadcasts on radio and television, the nature of the Internet is not analogous to radio and television, since it does not fall within the purview of any governmental regulatory agency.¹⁰ In addition, because of its global reach, the Internet makes the application of the Miller and Ginsberg tests extremely difficult if not technologically impossible, at least for now. Internet sites can originate from servers anywhere in the world, making it virtually impossible for courts in the United States to enforce any legislation banning the publishing of certain material deemed harmful.

III. Congressional Attempts at Regulation

In trying to shield minors from the proliferation of pornographic material, Congress has made three attempts at regulating children's access to pornographic sites. These attempts include the Communications Decency Act, the Child Online Protection Act, and the Children's Internet Protection Act.

In 1996, Congress passed the Communications Decency Act (CDA),¹¹ which criminalized the knowing transmission of obscene or indecent communications to persons under the age of eighteen. The CDA prohibited "knowingly sending or displaying to a person under eighteen any message that, in context, depicts or describes, in terms patently offensive as measured by community standards, sexual or excretory activities or organs."¹² Affirmative defenses were provided for those who took good faith, effective actions to restrict access by minors or for those who restricted access by requiring proof of age.¹³ However, in Reno v. ACLU, the Supreme Court ruled that the CDA's content-based restrictions on speech were unconstitutional.¹⁴ The Court was concerned that the unique nature of the Internet made age verification virtually impossible and that the content-based blanket restrictions on speech were overbroad and not narrowly tailored.¹⁵

In order to solve the problems with the CDA, in 1998 Congress passed the Child Online Protection Act (COPA).¹⁶ COPA prohibits an individual or entity from "knowingly and with knowledge or the character of the material, in interstate or foreign commerce by means of the World Wide Web, making any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors."¹⁷ In an effort to cure the constitutional problems with the CDA, Congress restricted the scope of COPA to material on the World Wide Web with a commercial purpose that was deemed harmful to minors.¹⁸ COPA also provided an affirmative defense if, in good faith, the defendant has restricted access by minors to material that is harmful to minors "(1) by requiring use of a credit card, debit account, adult access code, or adult personal identification number; (2) by accepting a digital certificate that verifies age; or (3) by any other reasonable measures that are feasible under available technology."¹⁹

The United States Court of Appeals for the Third Circuit declared COPA unconstitutional and issued a preliminary injunction preventing the enforcement of the Act.²⁰ Although the District Court for the Eastern District of Pennsylvania found that the Act was not narrowly tailored and imposed an excessive burden on Web publishers, the Court of Appeals based its decision solely on COPA's reliance on contemporary community standards to identify material that is harmful to minors, particularly as it relates to the Internet.²¹ The Third Circuit focused on the aspect that the World Wide Web is not geographically constrained and that there is no technology currently available that would allow publishers to prevent their sites' content from entering a particular geographic area. As such, the community standards test would require every publisher to abide by the most restrictive communities' standards.²² Adults in more liberal communities with less stringent standards would be denied the right to view material that was constitutionally protected because the publishers would be obligated to adhere to the standards of stricter communities. The Court of Appeals found this aspect of COPA to impose an overreaching burden on constitutionally protected speech and therefore declared the Act unconstitutional.²³

In November 2001, the Supreme Court heard oral arguments regarding the federal constitutionality of COPA.²⁴ The Court's questions focused on exactly what Congress intended with its "community standards" test and whether Congress meant a community standard in the context of the Internet as a national standard.²⁵ Senator John McCain (R- Ariz.) and retired Representative Thomas Bliley (R-Va.) submitted a brief to the Court in which they stated:

What is harmful to minors isn't decided by a geographical community. Instead it is based on the views of the American adult community as a whole. The law was to be adapted to the World Wide Web by using a new standard of what the American adult-age community as a whole would find prurient and offensive to minors.²⁶

If the Supreme Court determines that the community standards test is based on some national standard, then the constitutionality of COPA will still be unclear since the Third Circuit would then need to address the other First Amendment concerns raised by the District Court.

Ironically, if the Supreme Court were to adopt this national standard it would undermine the Ginsberg and Miller tests. The Supreme Court stated in Miller that "our nation is simply too big and too diverse for this Court to reasonably expect that such standards of what is patently offensive could be articulated for all fifty states in a single formulation."²⁷ However, the unique non-geographic nature of the Internet might make a national standard the only feasible alternative.

While Congress awaits the constitutional fate of COPA, they passed yet another measure to protect children from access to harmful material on the Internet. In 2001, Congress passed the Children's Internet Protection Act (CIPA).²⁸ CIPA requires that K-12 schools and public libraries that receive certain types of federal funding "(1) purchase and install technology protection measures that block or filter Internet access to certain, specified 'visual depictions,' (2) create Internet safety policies, and (3) conduct at least one public meeting to collect input from community members with a relationship to the school."²⁹ Visual depictions to be blocked or filtered include those that are obscene, child pornography and depictions that are deemed harmful to minors.³⁰ As...