Still, What's So Compelling?--the Supreme Court's Continued Application of the Ginsberg Analysis and Its Effect on the Attempted Regulation of Internet Pornography in Ashcroft v. American Civil Liberties Union, 542 U.s. 656(2004)

• Publication year: 2021

84 Nebraska L. Rev. 1280. Still, What's So Compelling?--The Supreme Court's Continued Application of the Ginsberg Analysis and Its Effect on the Attempted Regulation of Internet Pornography in Ashcroft v. American Civil Liberties Union, 542 U.S. 656(2004)

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Still, What's So Compelling?--The Supreme Court's Continued Application of the Ginsberg Analysis and Its Effect on the Attempted Regulation of Internet Pornography in Ashcroft v. American Civil Liberties Union, 542 U.S. 656(2004)

TABLE OF CONTENTS

I. Introduction ...................................................... 1281
II. History and Jurisprudence--The Sex Speech
Backdrop ......................................................... 1284
A. General History--Roth, Paris Adult Theater I, and
Miller ...................................................... 1284
B. As to Minors--Ginsberg v. New York .......................... 1286
C. Communications Decency Act .................................... 1287
D. Child Online Protection Act ................................... 1288
E. Ashcroft v. American Civil Liberties Union .................. 1290
III. Analysis ........................................................ 1294
A. That's Not What We Meant ..................................... 1295
B. Do We Pass Now? .............................................. 1298
1. More Effective? ........................................... 1298
2. Less Restrictive? ......................................... 1302
C. A "Compelling" Compelling Interest? .......................... 1303
IV. Conclusion ....................................................... 1308

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"The right to receive information and ideas, regardless of their social worth is fundamental to our free society. "(fn1)

"[C]riminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. "(fn2)

I. INTRODUCTION

The idea that there is "freedom of speech" traditionally has been somewhat disingenuous, criticized as a freedom that applied only to those with the ability to afford the required printing equipment.(fn3) With the advent of the Internet, however, many who previously would not have been able financially to support a means to disseminate their ideas could do so with minimal expense, fostering "the marketplace of ideas."(fn4) However, this newfound freedom also provides "a potentially harmful media for children."(fn5) Various commercial Internet sites contain graphics that many people would classify as pornographic.(fn6) Many of these sites offer "teasers," free sexually explicit material that is intended to entice a person to pay for the opportunity to see more. While this marketing technique is designed to attract paying adults, the free teasers are also available to children. "A child with minimal knowledge of a computer, the ability to operate a browser, and the skill to type a few simple words may be able to access sexual images and content over the World Wide Web."(fn7) In fact:

[T]welve percent of websites are pornographic in nature, twenty-five percent of all Internet search engine requests are for pornography, the average child first views Internet pornography at age eleven, and eighty percent of fifteento-seventeen-year-olds have experienced multiple hard-core online pornography exposures. Approximately 11 million minors visit pornographic websites each week.(fn8)

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In an effort to reduce minors' access to sexually explicit material on the Internet, Congress, in 1998, passed the Child Online Protection Act ("COPA"). The Act sought to compel providers of commercial internet pornography to establish a barrier--an "adult verification screen"--that would require anyone intending to access such a site to first prove himself an adult.(fn9)

Civil liberty groups, including the American Civil Liberties Union ("ACLU"), and Internet content providers believed COPA was unconstitutional and filed for a preliminary injunction on October 22, 1998, against the government to prevent the enforcement of the Act.(fn10) The district court held COPA to a strict scrutiny analysis,(fn11) found that it failed such an analysis,(fn12) and granted the preliminary injunction. On appeal, the Third Circuit Court of Appeals reviewed under an abuse of discretion standard and affirmed the district court.(fn13) The case was then appealed to the United States Supreme Court. After determining that the government had "failed . . . to rebut the plaintiff's contention that there are plausible less restrictive alternatives to the statute,"(fn14) chiefly filtering software,(fn15) and taking into consideration several "practical reasons,"(fn16) the Supreme Court held that the district court did not abuse its discretion in granting the injunction. Further, without declaring with finality whether COPA is unconstitutional, the

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Supreme Court stated that "COPA should be enjoined because the statute likely violates the First Amendment."(fn17) The case was then remanded to the district court to adjudicate the constitutionality of COPA on its merits.

The Court was to decide solely on the issue of the injunction and was not adjudicating the case on its merits.(fn18) However, in its majority opinion, the Court directly stated that COPA was "likely" unconstitutional, which illustrates how the Court will probably rule when it has to decide the constitutionality of COPA on its merits. It is this language that compels analysis.

This Note will begin, in Part II, with an examination of the circumstances leading to the Supreme Court's decision, discussing both the case history of sex speech as well as the legislative backdrop to the creation of COPA. Next, section III.A will demonstrate how the majority opinion of the Supreme Court narrowed the protected class originally intended by Congress. Section III.B will explain how the majority opinion's arguments touting filtering software as a more effective and less restrictive means fail when applied to the intended broader class. Section III.C will argue that these findings are directly related to the Supreme Court's implicit reliance on Ginsberg v. New York ;(fn19) that the Supreme Court should abandon Ginsberg, which al

lows a rational relation test to validate the first prong of a strict scrutiny analysis;(fn20) and that the Supreme Court should oblige empirical evidence relating to the need for such legislation (i.e., relating to the compelling interest) from Congress. Only then will the (un)constitutionality of such an act be arguable. While in sections III.A and III.B I disagree with the Court's finding of a more effective, less restrictive means, the concluding argument of this Note is that if empirical evidence of the harm caused to minor children by sex speech were presented to the Court (via legislative findings), then the Court would be better suited to discuss the existence of a compelling interest and the constitutionality of a proposed remedy.(fn21)

II. HISTORY AND JURISPRUDENCE--THE SEX SPEECH BACKDROP

Before any attempt is made to discuss the main arguments presented in this Note, it is imperative to understand the legislative and judicial backdrop from which these arguments were formed. I will therefore present, in section II.A, a general case history and show how the Supreme Court distinguishes between sex speech that is protected by the First Amendment (i.e., non-obscene speech), and that which is not protected by the First Amendment (i.e., that which is obscene). In section II.B I will discuss how the Supreme Court treats regulations that attempt to prevent minors from coming into contact with sex speech that, although protected by the First Amendment, is seen as harmful to their development and well-being. In section II.C I will discuss the Communications Decency Act ("CDA"), the first attempt by Congress to regulate non-obscene sex speech on the Internet. Finally, in sections II.D and II.E, I will give a detailed description of the regulation at issue in this Note, COPA, and the Supreme Court's opinion that ultimately ruled that Act "likely" unconstitutional.

A. General History--Roth, Paris Adult Theater I, and Miller

Sex speech, and its interaction with the First Amendment, has an interesting jurisprudence. In modern times, the debate between what constitutes First Amendment protected sex speech and what is unprotected obscenity evolved in three main cases, all of which will be discussed in this section.

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The first case of particular importance is Roth v. United States .(fn22) There, the Court stated that "the unconditional phrasing of the First Amendment was not intended to protect every utterance."(fn23) But, the Court continued:

[S]ex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g ., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. . . . It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.(fn24)

The Court in Roth then defined that which appeals to a prurient interest as that which is "a shameful or morbid interest in nudity, sex, or excretion."(fn25) Sex speech, which does not appeal to the "prurient interest," is protected under the First Amendment; obscenity, which does appeal to the "prurient interest," is not.(fn26) This distinction became known as the Roth standard.

The next major case was Paris Adult Theatre I v....