Ruling last week on the Child Online Protection Act, the Supreme Court said that community standards can and should apply to the Internet, but suggested that there might be deeper First Amendment problems with the controversial law.
The ruling let the preliminary injunction against COPA stand and remanded the case back to the appellate court in the Third District. Judges in that court had found that pornography's normal acid test of community standards should not apply to the Internet, because the fungibility of the medium would mean that standards of stricter communities would unfairly hold sway over all others. Most of the justices repudiated this idea, saying the strictest standard can apply. Justice John Paul Stephens dissented, while two others put forth the idea of a national community standard that would blend the strict and the less strict.
COPA was passed in 1998, after 1995's Communication Decency Act withered under legal challenges. Like the CDA, it aims to regulate how adult content is displayed on the Web and places the onus on content providers to ensure that inappropriate material is not being viewed by minors. The ACLU and other opponents have argued that the law is overbroad and effectively prevents these content providers from exercising their right to free speech.
Supporters of the ACLU's suit to overturn COPA said it did not consider the ruling a setback. "A lot of people are trying to spin this as a victory for the government, but we don't see it that way," said AAP spokesperson Judy Platt. "The court ruled on the issue of community standards. But that had never been the thrust of our argument." Instead, Platt said, the group has been concentrating on such issues as whether the law was too broad or too vague in prohibiting what content providers could make available. "And importantly," she added, "the injunction is still in place."
Platt said her organization, which joined many others in filing amicus briefs, still hopes the law will be overturned. She also hopes legislators and others will take into account information gathered recently by the National Research Council suggesting that filters and similar technologies are best when used by parents as a tool, not as a blunt legal instrument.
Free Speech in Ohio
At the same time the Supreme Court was sending its mixed message, activists brought litigation to overturn an Ohio law that applies "harmful to minors" restrictions to the Internet. The plaintiffs, which include the American Booksellers Foundation for Free Expression, the AAP and Wilkie's Bookstore in Dayton argue that restricting access for minors also unconstitutionally limits the rights of the adult population. They hope to win a preliminary injunction before the law takes effect this August.
The suit follows the pattern seen in other states, such as New York and New Mexico, where similar claims have been filed. In those cases, laws had also sought to extend prohibitions on the distribution of harmful material to include the Internet. (Every one of those six statutes has been overturned, though some cases remain in various stages of appeal.)
In this case, however, the law uses a much broader definition of harmful material. Any work "depicting or describing violence," "glorifying crime" or containing "repeated foul language" falls under it. Some of the examples of materials that could be affected by the law include works by Louise Erdrich, John Grisham and Sister Souljah—as well as the Bible.
In addition to the possible problems of vagueness and overbreadh, the Ohio law, like COPA, raises the question of how to establish a community standard in a borderless environment. And like COPA, the High Court's lukewarm attitude on this point, said free-speech advocates, won't taint the larger cases in Ohio or regarding COPA. "There are so many things wrong with these laws that even if some judges come up with a novel reason and then it doesn't fly, it wouldn't affect the underlying problems," said David Horowitz, executive director of the Media Coalition.
Michael Bamberger, who is representing the Ohio plaintiffs, said he thinks the Ohio version of this law is "truly bizarre." But he warned against believing that a loss by the state would deter other states from enacting like-minded restrictions. "Legislators do a lot of strange things," he said. "They often find that the immediate benefits of passing a popular law outweigh the fact that two or three years later, they will have to pay for it."
