1998 B.C. Intell. Prop. & Tech. F. 103001
Communications Decency Redux: Child Online
Protection Act Enacted, Already Challenged by ACLU
by Bryan L. Olson, Staff Writer
Could an act recently signed into law subject web sites that publish the Starr report to criminal prosecution? Many opponents of the Child Online Protection Act, dubbed 'CDA II' believe that it does just that. Ronald Weich, legislative consultant on cyberliberties issues for the ACLU, contends that, "if CDA II had been the law (when the Starr report was released), even news sites that published the Starr report and that carry advertising or charge for access might have been subject to criminal prosecution."
Along the same line, could CDA II be used to hold a non-profit gynecology web site criminally liable because a prosecutor believes that the site's content is 'harmful to minors'? Could an on-line book-seller be subject to similar attacks? Surprisingly, the answer to each of these questions may be yes. As you might expect, many organizations with a presence on-line are unhappy with the new legislation. In fact, the ACLU and 19 other plaintiffs representing, "a broad range of individuals and entities who are speakers, content providers and users of the Web," have challenged the new law on constitutional grounds in Federal District Court.
The preliminary statement of the complaint begins by explaining the plaintiffs' position, "Congress has enacted a broad censorship law that imposes severe criminal and civil penalties on the availability, display and dissemination of constitutionally protected, non-obscene materials on the Internet by making it a crime to 'knowingly. . . by means of the World Wide Web, make any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors . . . .'" The statement continues, "Under the Act, any speech that some community might consider to be 'harmful to minors' - including Ken Starr's report on the Clinton-Lewinsky scandal or a Mapplethorpe photograph - is potentially criminal if displayed for free on the World Wide Web (the 'Web') and accessible by minors." The plaintiffs' action seeks to have the Act declared unconstitutional under the First and Fifth Amendments of the United States Constitution, both on its face and as applied to plaintiffs, and to enjoin the government from enforcing it.
The crux of this argument is that the act is unconstitutional based on Reno v. American Civil Liberties Union, the 1997 decision declaring the original Communications Decency Act unconstitutional. In a joint statement issued to the House committee considering the measure (just prior to the act being signed into law), 24 organizations led by the Internet Free Expression Alliance contend that, "CDA II should be rejected because it contains many of the unconstitutional provisions of the Communications Decency Act." The statement later continues that, "The bill (now law) would have the effect of criminalizing protected speech among adults."
On June 26th 1997, in Reno v. American Civil Liberties Union, the Supreme Court of the United States held that the Communications Decency Act of 1996 (CDA) was unconstitutionally vague and overbroad under the First Amendment. In its ruling, the Court cited Ginsberg v. New York, 390 U.S. 629 (1968), in which it upheld the constitutionality of a New York statute that prohibited selling to minors under the age of 17, material that was considered "obscene to them even if not obscene as to adults." The Court points out that the statute upheld in Ginsberg was narrower than the CDA in four important areas: 1) the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children; 2) the New York statute applied only to commercial transactions; 3) the New York statute cabined its definition of material that is harmful to minors with the requirement that it be "utterly without redeeming social importance for minors"; and 4) the New York statute defined a minor as a person under the age of 17.
Unfortunately for its proponents, the authors of the Child Online Protection Act ("CDA II" or COPA) may not have chosen wording that is any more constitutional than that of the CDA. In Reno, the court stated that "(T)he many ambiguities concerning the scope of (CDA's) coverage render it problematic for purposes of the First Amendment." The Court cited as an example, differences in linguistics between sections of the CDA. "The first uses the word 'indecent', while the second speaks of material that, 'in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.'" The court held that the difference in language (would) provoke uncertainty among speakers about how the two standards relate to each other. The Court asked, "Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality . . . or the consequences of prison rape would not violate the CDA?"
The language in CDA II is strikingly similar to the terminology in the original CDA that the Court found to be unconstitutionally vague. L. Anthony Sutin, Acting Assistant Attorney General for the Department of Justice, addressed this issue in his October 5 letter to Chairman Billey (Chair of the U.S. House or Representatives Committee on Commerce, which was considering CDA II at that time). In it, he stated, "While [CDA II] mentions that minors' access to materials on the Internet 'can frustrate parental supervision or control' over their children, §2(1), the only 'compelling interest' that the [CDAII] would invoke as a justification for its prohibitions is 'the protection of the physical and psychological well-being of minors by shielding them from materials that are harmful to them,' §2(2). The constitutionality of the bill would be enhanced if Congress were to identify as the principal compelling interest the facilitation for parents' control over their children's upbringing, in addition to the government's independent interest in keeping certain materials from minors regardless of their parents' views. See, e.g., ACLU 117 S. Ct. at 2341 (noting that the statute in Ginsberg presented fewer constitutional problems than the Communications Decency Act because in the former, but not later, parents' consent to, or participation in, the communication would avoid application of the statute)."
Another problem occurs in the act's reference to "communications for commercial purposes." The joint statement coordinated by the Internet Free Speech Alliance argues that, "While the bill is ostensibly aimed at 'commercial' web sites, that term is so broad that it covers anything from an on-line book seller like Amazon.com to a non-profit web site that sells books or T-shirts."
Justice O'Connor, in her concurring opinion joined by the Chief Justice in Reno v. ACLU suggests potential solution to the constitutionality issues discussed. O'Connor opens her opinion by writing, "I write separately to explain why I view the Communications Decency Act of 1996 (CDA) as little more than an attempt by Congress to create 'adult zones' on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound. Despite the soundness of its purpose, however, portions of the CDA are unconstitutional because they stray from the blueprint our prior cases have developed for constructing a 'zoning law' that passes constitutional muster." Justice O'Connor states that such adult zones have been previously sustained by the Court, "but only if they respect the First Amendment rights of adults and minors." She continues, "That is to say, a zoning law is valid if (i) it does not unduly restrict adult access to the material; and (ii) minors have no First Amendment right to read or view the banned material."
The question then arises: does the CDA II avoid unduly restricting access to the material? Opponents to the act argue that, in attempting to make material available to adults, CDA II infringes upon the privacy rights of adults by requiring them to submit a credit card number or complete other age verification procedures. Many contend that such policies are impractical and unduly restrict access to the materials. Consider another, perhaps even more important question: if the act meets Justice O'Connor's two criteria, will these conditions be enough to satisfy her, Chief Justice Rehnquist (who joined her opinion) and at least three more Justices? Nonetheless, the question is currently moot, as CDA II does not meet these criteria.
So why are opponents to CDA II up in arms? In the action filed by the ACLU the law is likely to be found unconstitutional. Currently, however, CDA II is the law, and that has made many companies and organizations that have web sites nervous. "CDA II is a Trojan horse," said Electronic Frontier Foundation President, Barry Steinhardt. "At first glance, it appears relatively benign with its sponsor's claim that it only applies to commercial pornographers who market their sites to minors, but when you look beneath that outside veneer, you quickly discover that it applies to any web site that has a commercial component and material that some community could consider 'harmful to minors.'" Or put a slightly different way by Salon Magazine, explaining why they joined as a party in the current lawsuit, "If the law isn't aimed at commercial porn publishers (who mostly obey its rules already) or at noncommercial sites, who's left? The main target appears to be commercial publishers of free-access Web sites that present sexual material some prosecutor somewhere might deem to be 'harmful to minors.' That includes -- among many others -- us here at Salon. We do not publish pornography. But we believe that sex, like the other subjects we cover, is an essential part of life, and as such deserves to be written about with honesty, humor and passion."
Protecting minors from harmful material on the Internet is and will continue to be a source of contention and debate. Many argue that the authors of the Child Online Protection Act have taken up an important cause, as did the authors of the Communications Decency Act (CDA). Section 2 of the CDA II states the finding of Congress that, "while custody, care and nurture of the child reside first with the parent, " the widespread availability of the Internet "can frustrate parental supervision or control." The findings continue that, "a prohibition on the distribution of materials harmful to minors, combined with legitimate defenses, is currently the most effective means by which to satisfy the compelling government interests." Most would agree that the stated aims of Congress are worthy aims; the problem has been (and now continues to be) in the execution.
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The text of the Child Online Protection Act