Sex on the Internet
Nothing in the field of cyberspace law
has generated more emotion than efforts to curb sexually explicit
material on the Internet. The prevalence of often- raunchy,
sex-oriented sites and cyber-advertising has outraged many,
who view it as a pornography invasion into homes and an enticement
to children. For others, it is the effort to censor that infuriates;
they see Internet regulation as the oppressive hand of government
in an otherwise pristine frontier of wide-open speech.
In the 1990s many speculated about how
the First Amendment would apply to the Internet. Would the
medium be accorded the same First Amendment freedom as a newspaper
or magazine, where only true obscenity can be banned? Or would
the Internet be regarded more like broadcast media, subject
to regulation of "indecent" content that would otherwise
be fully protected expression?
The Supreme Court addressed that question
in a 1997 decision concerning the Communications Decency Act
(CDA) enacted by Congress. The CDA made it a crime to place
on the Internet any sexual expression that was patently offensive
or indecent, though not necessarily obscene, unless the material
could be effectively shielded from minors. The American Civil
Liberties Union and 19 other groups filed a First Amendment
lawsuit against the act, charging that the ban was far too
broad and would threaten the Internet's ability to serve as
a medium of free expression, education and commerce for adults.
Furthermore, the groups alleged, less drastic alternatives
exist that would more effectively protect children, including
user-based blocking technology that allows parents to screen
out content.
In Reno v. ACLU
the Supreme Court invalidated those portions of the CDA that
attempted to restrict expression other than what's strictly
obscene. In the majority opinion, Justice Stevens distinguished
this case from Pacifica,
where the issue was "indecent" content in the broadcast
medium. The Internet had no similar history of content regulation
and was not as invasive as radio or TV, the Court said. Users
seldom encounter websites "by accident," but must
take a series of affirmative steps to access material. The
Court equated this case to an earlier decision in which it
invalidated a ban on "dial-a-porn" messages on the
telephone.
Congress decided to try again. In 1998
it passed the Child Online Protection Act (COPA), which provided
that anyone who commercially used the Web to make a communication
that is available to minors and includes "any material
that is harmful to minors" shall be fined or imprisoned
or both. COPA defined "harmful to minors" in part
by referring to "contemporary community standards"—a
problematic concept for the worldwide Internet. Purveyors
of explicit Web material could avoid liability, according
to the act, by requiring use of a credit card or other device
to ensure that only adults had access.
The ACLU and others challenged the act and
obtained a preliminary injunction against its enforcement.
In Ashcroft v. American Civil Liberties
Union the Supreme Court in 2004 upheld the preliminary
injunction, declaring COPA likely unconstitutional because
it did not use the least-restrictive means available to achieve
its goal of protecting children. The Court's 5-4 majority
concluded that readily available filtering software was not
only a less restrictive alternative but likely more effective
as well. Filtering software allows consumers, at the receiving
end of speech, to make their own decision whether to block
certain material. This approach, unlike the criminal penalties
in COPA, would not create a chilling effect on the creators
of otherwise legal sexual content intended for adults.
The Supreme Court sent the case back to
the federal District Court for a trial involving detailed
evidence on the Internet marketplace and effectiveness of
the latest filtering software. In March 2007 the District
Court again rebuffed Congress on First Amendment grounds and
issued a permanent injunction against COPA's content restrictions.
