The Child Online Protection Act of 1998 would Suppress Free
Speech among Adults
E-commerce links for hardcopy of book containing this chapter (DADT 2002).
In June 1997, the Supreme Court
overturned many provisions of the Communications Decency Act, those measures in
the law that would have effectively prohibited “indecent” (though not
“obscene”) postings on the Internet in any area publicly accessible to minors.
The
In October 1998, Congress tried to
remedy this constitutional defect with the Child Online Protection Act (“COPA”
or “
The law defined “harmful to minors”
with a list of three prongs, which essentially enumerated as follows: (1)
appealing to the prurient interest of minors; (2) sexually explicit, either
with graphics or detailed written description or possibly even by reference and
inference (the law did mention the post-pubescent female breast); (3) not
having serious literary, social, political or scientific value for minors.
Content apparently would meet the legal definition of “harmful to minors” only
if it satisfied all three prongs. The law used the notion of community
standards borrowed from the well-known custom with obscenity.
In November 1998, a coalition of
seventeen plaintiffs filed suit in federal court to have the law overturned. As
a member of Electronic Frontier Foundation, I am named as an “indirect
plaintiff.” I had authored my ambitious book, Do Ask, Do Tell, about libertarianism and gay
rights, which I maintain with supporting materials at my site, www.doaskdotell.com,
and some of my material is moderately adult in subject matter. For me,
requiring credit-card or other adult access to see my materials would have been
totally impractical and would have shut down or discouraged much traffic to my
site, even if I could afford to implement a credit-card facility.
The law appears to have been motivated
by pre-election posturing, particularly to impress voters that Congress would
protect children. In fact the law does
little to shield children from inappropriate materials. Most hard-core
pornography on the web already requires credit card or adult access, although
some operators “tease” consumers with free “previews” (the Justice Department
has maintained that stopping this was the “real” intention behind COPA, however
clumsily and laboriously worded).
More significant is that (even given
technology as of the time of passage in 1998), parents already have several
effective ways to keep adult materials from their kids, all of these
established voluntarily by private Internet service companies for their
customers. They can choose
There have been cases where children
and young teens have discovered grossly indecent materials, but in
practically every such case the parents had failed to install controls.
Furthermore, all reputable service providers have codes of conduct (such as
Arguably, commercial operators may
have some responsibility to protect the public from their products regardless
of what parents do. Yet the “affirmative defenses” proposed by Congress would
(without much affecting commercial pornography) effectively hamper access to
free content and circulation of lively discussion about important issues, both
personal (such as safer sex) and public.
The web has become an effective way to
present difficult materials with more depth than used to be possible. In the
past, political issues about sensitive moral questions tended to be aired in a
polarized fashion and to be settled by taking sides, raising money and counting
votes while airing the simplest (and most emotional) rhetoric possible. Some
problems, such as public health, gays in the military, and recently the conduct
of our president, require delving into adult concepts before they can be
understood in depth. Individuals and small businesses with intellectual
property to “sell” can, by presenting these issues, often counter (and perhaps
undermine) well-funded political organizations, certainly with more
effectiveness than individuals simply venting personal opinions with letters to
editors and or venting sentiments with pre-written broadcast faxes to public
officials.
COPA, while perhaps intended by some
lawmakers merely to stop commercial pornographers from “advertising” indecent
exposures in public, may be taken in some communities as a warrant to stop all
adult discussions on the Internet within possible sight of children. If certain
things are right or wrong, then, according to some people, they just don't need
to be discussed in public. Leave that to the pastors and professionals! Of
course, this attitude does run counter to the First Amendment.
COPA indeed brings up the “cultural
war” hedge issue: How much freedom should adults sacrifice to protect children
from inadvertent harm? It also invokes the question, whether people should
expect simple answers to difficult cultural questions (as through religion) or
should work out tough issues on their own. (And, yes, I wonder whether the
Minnesota Profiles in Learning would ultimately stunt the ability of people to
look at issues on their own.)
On
COPA is not the only threat to this.
Some will call for holding authors, publishers or Internet service providers
responsible when others use their writings or facilities to commit crimes
(whether securities fraud or murder), and thereby keep the right to influence
public opinion or achieve in the creative arenas under the control of
politicians or other vested interests. For example, there is a lawsuit (settled
out of court in 2001) against the author and publisher of an “assassination
manual” over a crime committed by someone who apparently followed its recipe
closely.
On
In June 2001 the Supreme Court accepted
an appeal from the Justice Department. On the surface, it appeared that the
Court might review all of the different levels of concern over the implications
of a law like this for the First Amendment. Soon, however, it was clear that
the Court’s greatest concern was the particular rationale offered by the Third
Circuit. If COPA could be invalidated because of the failure of community
standards, then a whole body of obscenity law might also be at risk.
The Justice Department wrote energetic
briefs that downplayed the potential harm done by use of community standards.
It invoked several important cases, such as Miller,[1]
Hamling,[2] and Sable.[3] The “serious value” or third prong, it
argued, had always been understood, even in obscenity law, to refer to a
national standard. Furthermore it conceded that the serious value clause could
be invoked if material has value “for a legitimate minority of older
minors.” In informal terms, this means
that material that was valuable for
mature teens like the fictional characters
As for the other two prongs, the
definitions were clear enough, in its view, so that only pornography (possibly
of the soft-core Playboy variety)
could be affected. The separation of quasi-pornography by an “electronic brown
wrapper” would be comparable to keeping such material in separate adults-only
sections of convenience stores or gay book stores. Since most of the plaintiffs
(myself included) offered adult but putatively non-pornographic materials, we
(as plaintiffs) likely did not have standing to sue, according to this theory.
Oral arguments took place on
On the other hand, the ACLU pointed
out that the use of a national standard still could deny adults ready access to
constitutionally protected materials, a situation different from that with obscenity
law. One controversy that developed during the hearings was how many of the
plaintiffs really could be at risk of prosecution. The government seemed to
think that there were only three such plaintiffs. The ACLU pointed out that the threshold for
application of “harmful to minors” definition could change at government whim,
and that therefore there would exist a “chilling effect” on speech.
The Supreme Court ruled on
The Court’s opinion did show
considerable respect for the content of a number of the sites, some of which
(like mine) had proportionally only a small volume of material that might be
viewed as harmful to minors but for whom this material was a critical component
to what the publishers or authors had to say. It also paid some attention to
the questions over what is a commercial provider, particularly if that is an
individual self-publishing political materials through a home-based business
and not intending to sell pornography.
But Justice Thomas, in a statement that was not concurred by other justices, suggested (based on Hamling and Sable) that publishers of harmful to minors materials should merely use publishing mechanisms (that is, mail or other hardcopy delivery) that permit them to physically sieve different materials for different destinations (that is, that the Internet was not a legitimate means to publish harmful to minors literature commercially at all). To quote: “If a publisher chooses to send its material into a particular community, this Courts jurisprudence teaches that it is the publisher’s responsibility to abide by that community’s standards. The publisher’s burden does not change simply because it decides to distribute its material to every community in the Nation.” Justice Thomas’s comment would sound like an invitation for a state or locality to define “harmful to minors” very broadly to heckle out Internet traffic, but the Court concurred that case law establishes a national standard for at least the “serious value” prong.
Here, I want to back up and reiterate
my basic concern, as expressed in my affidavit, of how COPA might have affected
a “new man in the block” of creative or controversial Internet writing and
self-publishing. The sum of my argument depends upon presenting some material
having particularly to do with male homosexuality and the way a segment of
society views homosexuality as “cheating the system,” that is frankly mature in
nature, probably suitable (even important) for high school teens but not for
young minors, who might view such material as sensational or prurient. Since I am self-publishing with my own money
and limited resources, a prosecutor and jury might view me as promoting myself
in front of children. An important component of my strategy is the offering of
most of the material for free on the Internet to attract readers (“passive
advertising” as opposed to “guerilla marketing”), as well as to offer hardcopy
for sale through the Internet and retail outlets. It would be possible to
maintain several arguments.
First, should not material available to minors
be segregated in a way similar to movie ratings? (My material, if filmed, would
probably correspond to the R rating.) Second, if I want commercial gain, should
I not be expected to have the scale that would protect children even from
moderately adult materials? In late 2000 I discussed all of this with a
reported at the
One possible answer is that commercial
speech does have considerable protection in prior case law, and a commercial
component often enhances the reach, political effectiveness, and public
credibility of an individual’s speech. Another possibility is that some
communities might view some kinds of subject matter, especially gay-related
materials, as prurient with respect to minors by definition. The ACLU raised
this possibility in briefs, with mention of the military “don’t ask don’t tell”
policy in one place (possibly because of prodding by me—and I’ll add here that
I’m pretty sure that the legal clerks in the Supreme Court read all of the
legal theories about DADT in my writings, as if I had succeeded in getting the
DADT question before the Court in a case that it would actually take). And end result could be, in theory, that it
could be illegal to advertise any gay-related product for sale on the Internet.
Nevertheless, it is possible to read
the text of the harmful to minors definitions as being particularly focused
upon sexual acts or sexual parts themselves (particularly with the Second
Prong) and if so, categorical material like general discussions of
homosexuality would not fall into concern (even ignoring the community
standards problem) until the speaker became specific with respect to sexual
activity itself (as with conveying safer sex information). The Court shows some concern over the possibility
that this would not be the case, as when it mentions discussions of gay
parents. Another important concern is that, as a practical matter, the
government could use civil lawsuits rather than criminal prosecution to harass
speakers when the government believed that only a lower standard of proof,
often based on the sympathy of a jury, was achievable.
But this would lead to what the Third
Circuit must take up now, the least restrictive means analysis, and the
effectiveness of various schemes to separate young minors from adult content.
The Supreme Court, in the oral arguments, asked if a self-rating system
attached to browsers was feasible. The ACLU responded that this would not be
possible for small Internet content providers like myself, but that assertion
is not correct.
The Internet Content Rating Association, for
example, is developing a scheme to label web pages with meta-tags, and then
parents will be able to configure browsers and
A more advanced method might be to place
adult-like material into XML pages (rather than native HTML), maybe dumped off
a relational knowledge database, and then use parsers, schemas and style sheets
(associated with the java or similar object-oriented programming language or
with other facilities offered, for example, by Microsoft .
As for credit cards and adult-ID
services, the ACLU rather than the government is certainly right. Credit cards
are only suitable for sites with large transaction volumes, not for content
providers who offload their merchant processing to places like Amazon or Barnes
and Noble. And so far adult-ID companies
have been offering services only for viewing outright pornography, not for
educational adult content. But there is no reason why venture capitalists could
not come up with a new style for adult-id services, if the market for them was
there.
There are several other pieces of
legislation that are sometimes confused with COPA. For example, a Children’s
Internet Protection Act (CIPA) effective 2001, would require schools and
libraries getting federal funds to install filters for pornography and adult
material. This is less draconian than
There is also a Children’s Online
Privacy Protection Act (COPPA, 1998) associated with COPA, and this merely
prohibits web sites from collection information it knows to be children under
thirteen without consent of parents.
This provision has not been challenged.
Also in 1995, Congress considered
making it a crime (at least in pictures) to suggest that a minor is engaging in
sexual activity even if an adult is used or the image is generated by computer.
Remember the film The Tin Drum, which a district attorney in
(A) the production of such visual depiction involves the use of a minor
engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor engaging in sexually
explicit conduct; or
(C) such visual depiction is advertised, promoted, presented, described, or
distributed in such a manner that conveys the impression that the material is
or contains a visual depiction of a minor engaging in sexually explicit
conduct.” [5]
The book Lolita, which
describes a love affair with a twelve-year-old girl, might be illegal. What about a novel that describes a sex act
with a person underage in some states even if (in the fictionalized setting)
the person looks like an adult or the character committing the crime in the
plot of the novel does not know that the person is underage (an interesting
pretext for a novel)? Is all of this “thoughtcrime”? What
about sex education materials? Is there
a principled distinction between cartoons and “virtual reality” depictions of
sex acts? Of course, many will argue
that computer generated images of children in sex acts encourages (by “mental
effects”) actual sex acts against children by unstable people. This law has
some of the problems of COPA. (Below is a good reference on this Act: http://www.parrhesia.com/cp.html. It would appear from this analysis that an
affirmative defense is provided if the speaker or distributor does not
advertise the material as portraying sex by minors and if real adult actors are
used. However, Jerry Hall of Tate & Bywater raises troubling questions about state jurisdiction
at http://www.tatebywater.com/features/099705.html.) The Supreme Court heard oral arguments on
this, Ashcroft v. Free Speech Coalition,
00-795, on
On
It is well to note here that the
federal government has recently become very aggressive in pursuing child
pornography customers, to the point of setting up stings (such as “Candyman” in early 2002) and then obtaining search warrants
to examine the hard drives of customers for cached or deleted images.
Possession of child pornography is a strict
liability offense much like drug possession, so even clicking upon an image
that one knows to be child pornography is considered a crime. Persons caught in
these dragnets generally have no criminal records and have been “guilty” only
of idle or inappropriate curiosity.[6]
It is easy to imagine how such enforcement efforts could someday ensnare
persons who may have illegal images on their hard drives without their
awareness.
The most important issue for me, in
looking at COPA and similar legislation intended to protect children, goes
deeper than just hindering access of adults to constitutionally protected
materials. It raises the question as to whether certain conventional ideas
(particularly those grounded in religious faith), because they are more
acceptable to an “average person,” will achieve more attention in public debate
than will more daring and challenging notions. The possibility of individuals
and small business or political interests to widely disseminate their ideas, at
some possible risk to younger children who may be inadvertently exposed to
material over their heads, does tend to level political debate in the long run.
Copyright
1999, by
[1] Miller v.
[2] Hamling v.
[3] Sable Communications of
[4] Tracey Baker, “The Dark Side
of the ‘Net,” Smart Computing, August
2002, p. 40. Baker mentions at one site, http://www.quova.com/
, is already offering software to
determine the location of a client computer viewing a site. It is not yet clear
how affordable or practical this is for a small business. Perhaps geographical
sensitivity could be implemented in newer object-oriented languages as
interfaces
[5] There are many sources of this text, such as http://www.aclj.org/ussc/cppa/index.asp
[6] Steve Silberman, “The