June 29, 2004

Ashcroft v. ACLU

by Nick Morgan

E-porn providers may have dodged a bullet today. The Supreme Court affirmed a preliminary injunction against enforcement of the Child Online Protection Act, 47 U.S.C. 231, an Act designed to bar minors' access to Internet obscenity. The Court remanded for trial on the factual question whether filtering technology, for instance, would be a less restrictive alternative to the COPA. With respect to minors, COPA rather closely tracks the obscenity framework of Miller v. California, 413 U.S. 15, 24 (1973). Surprisingly, however, the majority fails to discuss Miller. This raises the question whether the Court intends to move obscenity doctrine away from the Miller requirements (which, when satisfied, exclude speech from First Amendment protection). Kennedy's majority opinion avoids explicit selection of a standard of review, but in the midst of a lengthy "less restrictive alternative" analysis, he hints that strict scrutiny may apply:

    [Discussing Playboy Entertainment Group:] Absent a showing that the proposed less restrictive alternative would not be as effective, we concluded, the more restrictive option preferred by Congress could not survive strict scrutiny. Id., at 826 (reversing because "[t]he record is silent as to the comparative effectiveness of the two alternatives"). In the instant case, too, the Government has failed to show, at this point, that the proposed less restrictive alternative will be less effective.

Justice Breyer's dissent, joined by Justices Rehnquist and O'Connor, disputed the restrictiveness of COPA and offered these thoughts:

    The Act does not censor the material it covers. Rather, it requires providers of the "harmful to minors" material to restrict minors' access to it by verifying age. They can do so by inserting screens that verify age using a credit card, adult personal identification number, or other similar technology. See 231(c)(1). In this way, the Act requires creation of an internet screen that minors, but not adults, will find difficult to bypass.

I think the dissent's reliance on the above is misguided. Just how eager does Breyer think web-surfers are to give credit card numbers or other identifying information to porn peddlers? Of course, COPA also mentions other age-identifying technology, much of which, I imagine, would require surfers to at least install software or register at a government sponsored website that assigns age verifying passwords or some such (which would also require participation by operators of porn sites). And perhaps this is a burden that's worth keeping kids away from nasties online, but I think the dissent underplays the restrictiveness of COPA and the various unsettled factual issues better determined on remand.

June 29, 2004 05:57 PM | TrackBack
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