Time Line of Federal Efforts to
Regulate Sexually Explicit Internet Speech
In 1996, Congress enacted the Communications Decency Act (CDA) as part
of the Telecommunications Act of 1996.
The Supreme Court struck down the provisions of the CDA that
criminalized patently offensive and indecent internet speech that was
available to minors in Reno v. ACLU in 1997 (casebook at page 409) on
the
ground that the provisions of the CDA would unconstitutionally
interfere with the free speech rights of adults and was not the least
restrictive means available to accomplish the compelling goal of
protecting
children from exposure to speech that is harmful to them. The
Court applied the strict scrutiny test to evaluate the CDA because the
law criminalized the communication of speech protected by the First
Amendment and was based on the content of the communicated material and
not some content-neutral characteristic of the speech. In
addition, the internet was found to be a fully protection means of
communication and not less protected like radio and television
broadcasting. The
application of the CDA to obscenity, as contrasted with offensive and
indecent speech, has been upheld because obscenity
is not protected by the First Amendment.
Congress enacted the Child Online Protection Act (COPA) in 1998. It was
the second federal effort to regulate the availability of
pornographic material to minors online. COPA attempted to cure
some of the constitutional deficiencies identified by the Supreme Court
in its opinion in Reno v. ACLU. Shortly after COPA was enacted
and before its effective date, a federal district court issued a
preliminary injunction sought by the plaintiffs to block the
enforcement of COPA.
The district court’s decision to grant a preliminary injunction to the
plaintiffs was
appealed by the government to the Third Circuit. In 2000, the
Third Circuit upheld the grant of the preliminary injunction on the
ground that the community standards provision used as part of the
definition of material that is harmful to minors was likely to be held
to be unconstitutional once the case was decided on the merits. This
satisfied the burden on the parties seeking the
grant of a preliminary injunction to show that there is a likelihood
they will succeed on the merits of the case.
The Supreme Court reviewed the Third Circuit’s decision and overturned
its conclusion in Ashcroft v. ACLU in 2002. The Court
found that the statute was not unconstitutional because of the
community standards part of the definition of material harmful to
minors. The Court concluded that the First Amendment was not
violated by allowing each community to assess what material, taken as a
whole and with respect to minors, is designed to appeal to the prurient
interest. It reasoned that even though the result of the
application of multiple different community standards might be to force
an internet content provider to comply with the community standards of
the most puritanical community, that was a risk one runs by putting
material online and was inherent in the medium. It then remanded
the case for further proceedings to consider if there were other
aspects of COPA that might render it unconstitutional.
On remand, in 2003 the Third Circuit upheld the grant of the
preliminary injunction issued by the district court on the ground that
the challengers would likely win the case on the merits because there
were less restrictive alternatives available to the government,
particularly the use of filtering software installed on
computers. In Ashcroft v. ACLU in 2004,
the Supreme
Court, on review of
the Third Circuit’s decision, upheld the grant of the preliminary
injunction on this ground, finding that the government had not met its
burden of showing that filtering was an inadequate alternative.
The case was then remanded back to the district court to proceed to the
merits phase of the case. The district court thereafter declared
the statute to be unconstitutional because
it was a content-based regulation of speech that did not satisfy the
strict scrutiny standard since there were less restrictive means
available to regulate the material at issue. This was the first
time the statute had been reviewed on the merits. All of
the earlier cases concerned the propriety of issuing a preliminary
injunction. The district court's decision striking down the
statute was then affirmed by
the Third Circuit. The Supreme Court refused to review
the Third Circuit's decision putting an end to this long-running
litigation.
Congress also passed one additional statute to address the issue of
access to online pornography by minors. In 2000, Congress passed
the Children’s Internet Protection Act (CIPA)
which requires
that public schools and public libraries receiving several different
sources of federal funds install filtering software on all of their
computers to screen out obscenity, child pornography, and material that
is harmful to minors.
In 2003, the Supreme Court upheld the statute against a facial
challenge to its provisions. In United States v. American Library
Association, the Court ruled, in a plurality
opinion, that
public libraries were permitted to install filtering software on
library computers without violating the First Amendment and that,
therefore, the federal government was free to require filtering as a
condition of the receipt of federal funds. Two concurring
opinions concluded that the statute could survive a facial challenge
because it provided for a patron-initiated unblocking procedure to
address the issue of overblocking, but that as-applied challenges could
be brought if individual libraries did not respond to unblocking
requests in a timely minor.
Several efforts to gain passage of the Deleting Online Predators Act
(DOPA) have been unsuccessful. The bill was passed by the House several
years ago, but failed to gain passage in the Senate. The Act seeks to
expand CIPA so that
schools and public libraries receiving various sources of federal funds
would also be required to block access to social networking
sites. Like CIPA, DOPA contains an unblocking provision.