From: CDT Email [mailto:[log in to unmask]] Sent: Thursday, November 29, 2001 10:42 PM
To: [log in to unmask]
Subject: Policy Post 7.15: Supreme Court Hears Arguments in Online
Speech Case
CDT POLICY POST Volume 7, Number 15, November 29, 2001
A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL
LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
CONTENTS:
(1) U.S. Supreme Court Hears Oral Arguments In The Ashcroft V.
ACLU Challenge To COPA
(2) Supreme Court Focuses On The "Community Standard" Issue
(3) CDT Remains Confident That COPA Ultimately Will Not Survive
Legal Scrutiny.
------------------------------------------------------------------------
[Editor's Note: We appreciate that this is our second Policy Post
today. Although we do try to limit the frequency of Posts, the
following is a late breaking report and we did not want to delay it.]
Yesterday, November 28, the U.S. Supreme Court heard oral
arguments in the most important Internet free speech case since
the landmark ruling in the CDA case in 1997. Although the
arguments yesterday raised challenging legal issues, CDT
remains confident that in the final analysis, the courts will act
to protect free speech on the Internet.
------------------------------------------------------------------------
(1) U.S. SUPREME COURT HEARS ORAL ARGUMENTS IN THE
ASHCROFT V. ACLU CHALLENGE TO COPA
This week, the United States Supreme Court heard oral arguments
in a major test of free speech online. In the case of Ashcroft versus
ACLU, the Court is reviewing the constitutionality of the 1998 Child
Online Protection Act (COPA). COPA imposes criminal and civil
sanctions on any person who uses the Web to display "material
that is harmful to minors" to anyone under the age of 17. Two lower
courts - the federal district court in Philadelphia and the federal
court of appeals - prohibited enforcement of COPA because it
violates the First Amendment.
CDT, along with a broad coalition of publishers and public interest
groups, filed briefs to the court of appeals and the Supreme Court
arguing that COPA is unconstitutional. CDT also was counsel on a
brief to the Supreme Court filed on behalf of leading Internet
industry groups in support of the challenge to COPA.
The COPA statute is the successor to the Communications
Decency Act (CDA) that was struck down in a pair of landmark
lawsuits brought by CDT and others in 1996. In the CDA litigation,
the Supreme Court held for the first time that speech on the Internet
deserves the highest level of constitutional protection under the
First Amendment. In passing the COPA law after the CDA was
overturned, Congress created a nearly identical scheme of
government censorship that suffers from the same constitutional
deficiencies that the courts found in the CDA. The ACLU and others
challenged COPA in district court in Philadelphia. That court held
that COPA is unconstitutional because it is not the "least restrictive
means" to protect children on the Internet, and because it inhibits
the publication of lawful speech to adults.
On appeal, the Third Circuit Court of Appeals agreed that COPA is
unconstitutional, but relied on a legal analysis that had not been
addressed by the district court. The appeals court found that the
COPA statute is defective because it applies a "community
standards" test to the nationwide (indeed global) Internet. Based
on the global nature of the Internet, the Third Circuit Court of Appeals
struck down the COPA statute. Yesterday, the U.S. Supreme Court
heard oral arguments in the government's appeal of that decision.
CDT believes the Supreme Court argument continued to vindicate
our belief that COPA is unconstitutional and suffers from the same
flaws as the CDA. However, the argument left the suggestion that
COPA may undergo further legal review before final resolution.
More information about the Communications Decency Act can be
found at http://www.cdt.org/speech/cda/.
More information about the Child Online Protection Act can be
found at http://www.cdt.org/speech/copa/.
------------------------------------------------------------------------
(2) SUPREME COURT FOCUSES ON THE "COMMUNITY
STANDARD" ISSUE
Signaling the importance of the case, the Solicitor General of the
United States, Ted Olson, argued for the government. The ACLU
was well represented by Ann Beeson, who has been involved in
Internet free speech cases since the original CDA case in 1996.
The Supreme Court Justices indicated early in the oral argument
that they would focus only on the "community standards" issue
addressed by the Third Circuit Court of Appeals.
Under the community standards approach, the lawfulness of
sexually oriented speech is evaluated on a locality by locality basis.
Although such an approach makes sense with media like
magazines and videotapes that are sold in local stores, it does not
translate well to the Internet, where most Web content is available
to everyone.
The government argued that COPA could be upheld if the Court
construes the "community standards" test to be a national test
as applied to the Internet. In other words, if Internet content were
challenged in court as "harmful to minors," a jury would be asked
to determine whether the content is offensive based on what the
country as a whole would find offensive (as opposed to what the
jury's local community would find offensive). Several Justices
expressed doubt about the ability of a jury to apply such a "national
standard." Justice Scalia, for example, asked the government:
"What does someone raised his whole life in North Carolina know
about Las Vegas?" Chief Justice Rehnquist asked if a hypothetical
North Carolina jury would pay any attention to an out-of-town expert
witness testifying that certain content was acceptable nationally.
In her argument, the ACLU's Ann Beeson drove home the point that
a national standard as sought by the government would likely
reduce speech on the Internet to a level acceptable in the most
conservative jurisdiction in the country. In other words, a New York
City based web site could not post content that would be fully lawful
in New York City, if the content might be deemed to be "harmful to
minors" by a jury located in a very conservative rural community.
Beeson also forcefully argued that no matter how the Court resolves
the community standards question, the COPA statute still is
unconstitutional for the reasons found by the Philadelphia district
court. Beeson explained that the evidence considered by the district
court demonstrates that many web sites would lose a substantial
percentage of their visitors if the web sites were forced to comply
with the constraints imposed by COPA.
Beeson also emphasized that filters and other user-empowerment
tools were shown to be more effective in protecting children than the
COPA law itself. Justice Ginsberg had pressed the government's
lawyer on this point, asking whether COPA was really a "futile"
exercise in light of the availability of sexual content hosted on
overseas web sites and therefore outside the reach of the law.
Solicitor General Olson argued that Congress had a right to take
some steps even if those steps would not be perfectly successful,
but Olson failed to grapple with the evidence that the COPA would
in fact have little or no value in protecting children. As CDT and
others have argued since the CDA case in 1996, parental tools
such as filtering devices remain the most effective way to protect
kids on the Internet.
------------------------------------------------------------------------
(3) CDT REMAINS CONFIDENT THAT COPA ULTIMATELY WILL NOT
SURVIVE LEGAL SCRUTINY
Although questions raised by the Court in oral argument are not
necessarily predictive of the outcome of the case, yesterday's
proceedings strongly suggested that the Court is aware of the
constitutional challenges to COPA beyond the community standards
issue. No matter how the Supreme Court rules on the community
standards question, we believe it will ultimately consider the other
free speech arguments advanced by the ACLU, CDT, and others,
and find COPA to be unconstitutional.
On the community standards issue, CDT is hopeful that the Supreme
Court will re-affirm that it would be unconstitutional for a federal law
to limit speech on the Internet to the level that acceptable in the most
conservative community in our country. CDT remains confident that
on the basis of other challenges to COPA - which were not the focus
of yesterday's hearing - the Court will permanently overturn COPA.
CDT will of course continue to follow the developments closely. A
decision by the Supreme Court in the current appeal could come in
the first six months of 2002, but will almost certainly be issued by
June, 2002.
------------------------------------------------------------------------
Detailed information about online civil liberties issues may be found
at http://www.cdt.org/.
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/pp_7.15.shtml.
Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 7.15 Copyright 2001 Center for Democracy and
Technology
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