June 29, 2004

First Thoughts on Ashcroft v. ACLU

Today, the Supreme Court, with a 5-4 decision, upheld a preliminary injunction preventing enforcement of the Child Online Protection Act ("COPA"), codified at 47 USC 231. Basically the law requires websites that sell material that is "harmful to minors" to implement some sort of age verification, like a credit card check on pain of criminal and civil penalties. The history of the case is slightly convoluted with two apellate decisions and this second visit to the Supreme Court. Suffice to say that, simply, the case will now return to the district court to be decided on the merits. My First Amendment guru, Yale Professor Jack Balkin has a very nice short summary (COPA sent back for retrial). Or, you can read the 41-page decision for yourself, here: Ashcroft v. ACLU [PDF].

This is the third time that an internet censorship case has come before the Supreme Court (not counting the library filtering case) and there are still a number of very interesting aspects to be dealt with. SCOTUSBlog looks at one issue with a posting under the prurient title: Sex, the Internet and congressional frustration. The frustration of Congress, and of Breyer's dissent, is that Congress wrote COPA specifically in response to the Court's decision in the first internet censorship case, and the Court is saying it still isn't good enough Reno. SCOTUSBlog believes that the majority's decision is a "broad hint ... that the lawmakers may be doomed to frustration if they try again."

UCLA Law Professor Eugene Volokh considers one particular aspect of Breyer's views (in the dissent) on the definition of obscenity ("Prurient interest"). Volokh notes that Breyer's definition of "prurient interest" is much broader than previous definitions, "it simply seeks a sexual response."

See Professor Larry Solum for a good roundup of media and commentary (Legal Theory Blog: Ashcroft v. ACLU).

More on Breyer's understanding of obscenity below, including why Breyer makes the case for a novel "least restrictive means." Read on ...

Posted by Ernest at 9:46 PM

The Majority's Opinion (Kennedy authors, Stevens, Souter, Thomas, and Ginsburg join)

Since the law is content-based restriction, it must meet a very high level of judicial scrutiny. The law is presumed invalid and the government bears the burden of proving that the law is narrowly tailored to meet a compelling government interest. Protecting kiddies is clearly such an interest, as anyone who watches the Simpsons knows. So, we must see if the law is narrowly tailored and one means of doing this is to determine if there are "less restrictive means" available to accomplish the government's interest.

The majority concludes that, yes, there are plausible reasons to believe there are less restrictive alternatives to COPA, though they do not conclusively claim this but, instead, send the case back for more factfinding.

In Praise of Filters

The least restrictive means in this case are filters. Yea filters! Go filters! The opinion reads like a censorware author's dream marketing campaign.

The primary alternative considered by the District Court was blocking and filtering software. Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them. The District Court, in granting the preliminary injunction, did so primarily because the plaintiffs had proposed that filters are a less restrictive alternative to COPA and the Government had not shown it would be likely to disprove the plaintiffs’ contention at trial. Ibid.

Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify them-selves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.

Filters also may well be more effective than COPA. First, a filter can prevent minors from seeing all pornog-raphy, not just pornography posted to the Web from America. The District Court noted in its factfindings that one witness estimated that 40% of harmful-to-minors content comes from overseas. Id., at 484. COPA does not prevent minors from having access to those foreign harmful materials. That alone makes it possible that filtering software might be more effective in serving Congress’ goals. Effectiveness is likely to diminish even further if COPA is upheld, because the providers of the materials that would be covered by the statute simply can move their operations overseas. It is not an answer to say that COPA reaches some amount of materials that are harmful to minors; the question is whether it would reach more of them than less restrictive alternatives. In addition, the District Court found that verification systems may be subject to evasion and circumvention, for example by minors who have their own credit cards. See id., at 484, 496–497. Finally, filters also may be more effective because they can be applied to all forms of Internet communication, including e-mail, not just communications available via the World Wide Web.

That filtering software may well be more effective than COPA is confirmed by the findings of the Commission on Child Online Protection, a blue-ribbon commission created by Congress in COPA itself. Congress directed the Commission to evaluate the relative merits of different means of restricting minors’ ability to gain access to harmful materials on the Internet. Note following 47 U. S. C. §231. It unambiguously found that filters are more effective than age-verification requirements. See Commission on Child Online Protection (COPA), Report to Congress, at 19–21, 23–25, 27 (Oct. 20, 2000) (assigning a score for “Effectiveness” of 7.4 for server-based filters and 6.5 for client-based filters, as compared to 5.9 for independent adult-id verification, and 5.5 for credit card verification). Thus, not only has the Government failed to carry its burden of showing the District Court that the proposed alternative is less effective, but also a Government Commission appointed to consider the question has concluded just the opposite. That finding supports our conclusion that the District Court did not abuse its discretion in enjoining the statute.

Of course, filtering isn't perfect the majority concede, but the burden is still on the government to show why filtering is a less restrictive alternative: "Whatever the deficiencies of filters, however, the Government failed to introduce specific evidence proving that existing technologies are less effective than the restrictions in COPA."

Parents Must Take Responsibility

One aspect of this case that I really liked was the majority's response to the argument that Congress cannot mandate the use of filters by parents. The opinion responds that courts should assume parents will act responsibly and thus, the government cannot argue it needs to step in to supersede parental decisions.

The need for parental cooperation does not automatically disqualify a proposed less restrictive alternative. Playboy Entertainment Group, 529 U. S., at 824. (“A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act”). In enacting COPA, Congress said its goal was to prevent the “wide-spread availability of the Internet” from providing “oppor-tunities for minors to access materials through the World Wide Web in a manner that can frustrate parental super-vision or control.” Congressional Findings, note following 47 U. S. C. §231 (quoting Pub. L. 105–277, Tit. XIV, §1402(1), 112 Stat. 2681–736). COPA presumes that parents lack the ability, not the will, to monitor what their children see. By enacting programs to promote use of filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties.
This is one of the clearest descriptions of the nanny state I've read.

Rapid Technological Change

This portion of the decision will definitely get a lot of attention. The majority lays out its reasoning to send the case back to the district court for more factfinding, especially to consider the many changes that have occurred with regard to the internet in the past few years. It'll be interesting to see those opposing the law cite the ready availability of pornography on P2P networks ala Hatch, as well as other changes.

Third, and on a related point, the factual record does not reflect current technological reality—a serious flaw in any case involving the Internet. The technology of the Internet evolves at a rapid pace. Yet the factfindings of the District Court were entered in February 1999, over five years ago. Since then, certain facts about the Internet are known to have changed. Compare, e.g., 31 F. Supp. 2d, at 481 (36.7 million Internet hosts as of July 1998) with Internet Systems Consortium, Internet Domain Survey, Jan. 2004, (as visited June 22, 2004, and available in the Clerk of Court’s case file) (233.1 million hosts as of Jan. 2004). It is reasonable to assume that other technological developments important to the First Amendment analysis have also occurred during that time. More and better filtering alternatives may exist than when the District Court entered its findings. Indeed, we know that after the District Court entered its factfindings, a congressionally appointed commission issued a report that found that filters are more effective than verification screens. See supra, at 8.
However, this aspect of the case is somewhat limited and distinguishable from other cases:
We do not mean, therefore, to set up an insuperable obstacle to fair review. Here, however, the usual gap has doubled because the case has been through the Court of Appeals twice. The additional two years might make a difference. By affirming the preliminary injunction and remanding for trial, we allow the parties to update and supplement the factual record to reflect current techno-logical realities.
For more information on this issue, see Volokh Conspirator Stuart Benjamin's law review article, Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process, which the Court cites.

Hoist on Their Own Censorious Petard

Of course, Congress has also been busy passing other censorious laws "for the children." The Supreme Court points out that these other laws might also be "less restrictive alternatives."

Remand will also permit the District Court to take account of a changed legal landscape. Since the District Court made its factfindings, Congress has passed at least two further statutes that might qualify as less restrictive alternatives to COPA—a prohibition on misleading domain names, and a statute creating a minors-safe “Dot Kids” domain.
Another law that might bear mentioning is the no-spam act, which specifically targets sexually specific spam for special handling. Of course, it will be fun watching the government argue that these other alternatives aren't really effective.

Stevens/Ginsburg Concurrence

This section isn't terribly interesting. Both Justices reiterate their opposition to community standards for the internet, which they call a "fatal flaw." They're right, actually, but it will take the rest of the Court sometime to come to that realization.

The concurrence also repeats Stevens' refrain that criminal penalites are not appropriate for obscenity law. Once again, he's correct, but little good it does him right now.

Scalia's Dissent

Another uninteresting excursion into Scalia's belief that commercial pornography enjoys no First Amendment protection. As Balkin says, "The premise, it seems to me, is absurd." What is it with Scalia's obsession with the deadly sin of lust? Commercial speakers can appeal and promote all the other deadly sins (Pride, Avarice/Greed, Envy, Wrath/Anger, Gluttony, and Sloth), but try to exploit lust and Scalia will condemn you to hell criminal and civil sanctions.

Breyer's Dissent (with the Chief Justice and O'Connor joining)

This is far more interesting. Basically, they don't believe the law creates a major burden (for several reasons).

It's Only Obscenity

I'm not a fan of obscenity law. I think it is mess that should simply be gotten rid of. For this reason, Breyer's dissent fascinates me. One of the main reasons the law isn't burdensome, according to Breyer, is because it mostly applies to content that doesn't receive protection from the First Amendment anyway, obscenity:

The Act’s definitions limit the material it regulates to material that does not enjoy First Amendment protection, namely legally obscene material, and very little more.
Indeed, the language does track the "Miller" test for obscenity (no relation), but with a slight difference: it applies "with respect to minors." You would think that would mean something, but you would be mostly wrong, according to this dissent:
The only significant difference between the present statute and Miller’s definition consists of the addition of the words “with respect to minors,” §231(e)(6)(A), and “for minors,” §231(e)(6)(C). But the addition of these words to a definition that would otherwise cover only obscenity expands the statute’s scope only slightly. That is because the material in question (while potentially harmful to young children) must, first, appeal to the “prurient interest” of, i.e., seek a sexual response from, some group of adolescents or postadolescents (since young children normally do not so respond). And material that appeals to the “prurient interest[s]” of some group of adolescents or postadolescents will almost inevitably appeal to the “prurient interest[s]” of some group of adults as well.

The “lack of serious value” requirement narrows the statute yet further—despite the presence of the qualification “for minors.” That is because one cannot easily imagine material that has serious literary, artistic, political, or scientific value for a significant group of adults, but lacks such value for any significant group of minors. Thus, the statute, read literally, insofar as it extends beyond the legally obscene, could reach only borderline cases.

Breyer is actually making a pretty good and logical point here. Yet, I think that most people would see the statute as extending to far more than what is obscene for adults. And remember, Breyer is also promoting a very expansive definition of "prurient interest." How many types of media seek a sexual response, after all?

One wonders, if only borderline cases are at issue, why didn't Congress simply require that websites providing obscene materials (obscene as to all) have age identification? Indeed, wouldn't such a law be a "less restrictive means" given Breyer's definition? It doesn't affect any First Amendment rights, because it only applies to speech that is unprotected already, and it captures everything except some borderline cases. Seems like a classic example of a "less restrictive means" to me.

Of course, Breyer's narrow understanding of what the statute means seems belied by his own words and the Congressional history he cites in favor of his position:

And to take the words of the statute literally is consistent with Congress’ avowed objective in enacting this law; namely, putting material produced by professional pornographers behind screens that will verify the age of the viewer. See S. Rep. No. 105–225, p. 3 (1998) (hereinafter S. Rep.) (“The bill seeks to restrict access to commercial pornography on the Web by requiring those engaged in the business of the commercial distribution of material that is harmful to minors to take certain prescribed steps to restrict access to such material by minors . . .”); H. R. Rep. No. 105–775, pp. 5, 14 (1998) (hereinafter H. R. Rep.) (explaining that the bill is aimed at the sale of pornographic materials and provides a de-fense for the “commercial purveyors of pornography” that the bill seeks to regulate)....In sum, the Act’s definitions limit the statute’s scope to commercial pornography. It affects unprotected obscene material.
Since when has "commercial pornography" been equivalent to "obscene"? Answer: Not since the 1970's excepting Scalia's point of view.

The dissent then goes on to consider whether age verification is much of a burden. There will be a lot of interesting factfinding on this when the case goes back to the district court. For example, many credit card companies are wary of associating with pornography, becoming the focus of government obscenity enforcement (stop the flow of money), as well as the inevitable chargebacks and other issues it raises. It is not at all clear to me that the burden is as light as the dissent makes it seem.

Least Restrictive Means

There is quite a battle here between the dissent and the majority. The dissent characterizes the test as:

relevant constitutional question is not the question the Court asks: Would it be less restrictive to do nothing? Of course it would be. Rather, the relevant question posits a comparison of (a) a status quo that includes filtering software with (b) a change in that status quo that adds to it an age-verification screen requirement. Given the existence of filtering software, does the problem Congress identified remain significant? Does the Act help to address it? These are questions about the relation of the Act to the compelling interest. Does the Act, compared to the status quo, significantly advance the ball? (An affirmative answer to these questions will not justify “[a]ny restriction on speech,” as the Court claims, ante, at 8, for a final answer in respect to constitutionality must take account of burdens and alternatives as well.)
I'm not sure the dissent is compelling here. Of course, a court has to compare existing legislation to other potential legislation including merely promoting elements of the status quo. I don't get why that isn't to be considered.

As for filtering. the Court cites Stevens' dissent in the library filtering case for the proposition that filtering doesn't work. Strange. Additionally, the court makes the claim that American parents need a nanny state:

Third, filtering software depends upon parents willing to decide where their children will surf the Web and able to enforce that decision. As to millions of American fami-lies, that is not a reasonable possibility. More than 28 million school age children have both parents or their sole parent in the work force, at least 5 million children are left alone at home without supervision each week, and many of those children will spend afternoons and evenings with friends who may well have access to computers and more lenient parents.
Well, glad we have a government to pick up the slack for latch-key kids.

Another, less than compelling rational of the dissent is that putting 60% of the pornography websites behind age-verification barriers is effective enough. Unfortunately, that is the wrong way to look at it. The question shouldn't be whether you can inhibit some of the suppliers, but whether you can inhibit the supply. Inhibiting 60% of the suppliers may or may not have any effect on the supply. Of course, the 60% argument is also based on the extremely narrow definition of what the law covers, according to Breyer.

The dissent then disposes of the idea that the government could promote filters as a "magical" solution and castigates the majority for harshing on Congress' attempts to stay within the boundaries of Reno.

One final point on obscenity

Obscenity is unprotected by the First Amendment and there are already laws on the books punishing its distribution. Strangely, Breyer argues that this is another reason to uphold the statute, as the requirements of using age-verification for obscenity is less burdensome on free speech than prosecuting obscenity:

The Act tells the Government that, instead of prosecuting bans on obscenity to the maximum extent possible (as respondents have urged as yet another “alternative”), it can insist that those who make available material that is obscene or close to obscene keep that material under wraps, making it readily available to adults who wish to see it, while restricting access to children. By providing this third option—a “middle way”—the Act avoids the need for potentially speech-suppressing prosecutions.

That matters in a world where the obscene and the nonobscene do not come tied neatly into separate, easily distinguishable, packages. In that real world, this middle way might well have furthered First Amendment interests by tempering the prosecutorial instinct in borderline cases. At least, Congress might have so believed. And this likelihood, from a First Amendment perspective, might ultimately have proved more protective of the rights of viewers to retain access to expression than the all-or-nothing choice available to prosecutors in the wake of the majority’s opinion.

Well, this points out one of the main problems with obscenity law. However, it also points out that the government has a third option. The government could require that obscene material (obscene as to adults and minors) be provided behind an age-verification scheme. Why isn't that a possibility? It is clearly constitutional.

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Internet Censorship Law and Censorware Politics

Excerpt: Censorware Is Our Savior, forever and amen.

Read the rest...

Trackback from Infothought, Jun 29, 2004 10:17 PM

Thanks for some useful insight into the logic and direction of the Justices' opinions. I'm giving a small presentation on the constitutional difficulties of COPA and your succinct work is coming in very handy. Also, thanks for the links to congressional ramifications, etc.

Posted by Mario Ross on July 13, 2004 08:07 AM | Permalink to Comment

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