Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
Closed Expands Expression
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The United States Supreme Court held that the Child Online Protection Act’s (COPA) reliance on community standards to identify online material harmful to minors was not by itself an overly broad restriction of the First Amendment. Congress passed COPA to prevent minors from accessing pornography online on the grounds that such content was harmful. The American Civil Liberties Union (ACLU) and online publishers sued in federal court to prevent enforcement of the act, arguing that its scope could restrict protected speech in violation of the First Amendment of the US Constitution. The District Court agreed. On appeal, a Third Circuit Court of Appeals affirmed because the Act was overboard as it forced web publisher to abide by the most restrictive and conservative community standards to avoid criminal liability. The Supreme Court ruled that COPA’s reliance on community standards to determine if material is harmful to minors did not by itself make the act overbroad. However, the Court did not opine whether COPA was unconstitutionally vague on other grounds and sent the case back to the Third Circuit for further examination. Upon remand, the Third Circuit affirmed that the Act was neither narrowly tailored, nor the least restrictive means available and hence declared the law unconstitutional.
In 1996, driven by the concerns that the wide array of sexually explicit material available on the Web was accessible to children, Congress made an attempt to enact the Communications Decency Act (CDA), adopted as a part of the Telecommunications Act of 1996. The Act was aimed at prohibiting transmission of obscene or indecent messages over the internet to any recipients under the age of 18 years. This culminated in the Supreme Court’s decision in Reno v. ACLU 521 U.S. 844 (1997) where the Court unanimously struck down the prohibition of indecent materials online, holding that the First Amendment protected the internet fully and the restrictions imposed by the CDA were vague and overly broad.
The decision of the Supreme Court in Reno v. ACLU prompted Congress to enact its successor, the Child Online Protection Act (COPA), where an attempt was made to prohibit ‘any communication for commercial purposes’ over the World Wide Web that is ‘available to any minor and includes material harmful to minors’ [p. 6]. Drawing upon the three-pronged obscenity test propounded in Miller v California 413 U.S. 15 (1973), Congress sought to limit COPA’s scope in three ways: (i) by restricting application of the law to materials displayed on the World Wide Web (as against CDA which applied to communications over the entire internet); (ii) covering only communications made for commercial purposes; and (iii) restricting a narrower category of materials ‘that are harmful to minors’ (as against COPA’s wide scope to prohibit indecent and patently offensive communications).
On October 22, 1998, COPA was signed into law. One month prior to the Act’s effective date of enforcement, the respondents – a diverse group of organisations with websites which posted sexually oriented material – filed a suit challenging the law’s constitutionality in the District Court for the Eastern District of Pennsylvania. They argued that COPA violated adults’ rights under First and Fifth Amendments as:
District Court Judge Lowell A. Reed issued a preliminary injunction restricting enforcement of the Act. Significantly, the court found that COPA was ‘presumptively invalid’ and subject to strict scrutiny on account of being a content based regulation of sexual expression protected by the First Amendment. [p. 9]
On Appeal by the Attorney General, the U.S. Court of Appeals for the Third Circuit affirmed Judge Reed’s decision, but did so on grounds distinct from those in the order of the District Court. Specifically, the court focused on the application of ‘contemporary community standards’ to a global medium like the World Wide Web in identifying material that was harmful to minors. This rendered the statute substantially overbroad, as ‘web publishers (we)re without any means to limit access to their sites based on the geographic location of particular Internet users’ [p. 10]. It concluded that an application of the First Amendment test based on community standards essentially required web publishers to abide by the most restrictive and conservative state’s community standards in order to avoid criminal liability. This, by itself, led to the likelihood of COPA’s unconstitutionality, without reference to other provisions of the statute.
Consequently, the Attorney General’s petition for certiorari to review the judgment of the Court of Appeals was granted by the Supreme Court. While deciding on the sole issue whether the use of community standards by the law in itself led to its unconstitutionality, the Supreme Court responded in negative, and remanded the case to the Court of Appeals for further consideration.
On remand, the Court of Appeals reaffirmed its earlier decision, concluding on broader grounds that COPA was not the least restrictive means available for the government to fulfill the interest of preventing minors from accessing material harmful to them. The case returned to the Supreme Court for the second time in 2004 (Ashcroft II) where the Supreme Court reaffirmed the original preliminary injunction. Notably, the Court again declined to resolve the constitutionality of the law, basing its decision on the sole point whether government had satisfactorily proved that the law is the least restrictive means to accomplish its purpose. The case was remanded to the District Court to be decided on merits. It was appealed to the Supreme Court for the third time in 2009 (American Civil Liberties Union v. Mukasey 555 U.S. 1137) where the Court struck COPA effectively from the United States code with a full retrospective effect.
Justice Thomas announced the judgment of the US Supreme Court. The principle issue before the Court was whether the Court of Appeals properly barred enforcement of the COPA on First Amendment grounds because the statute relies on community standards to identify material that is harmful to minors.
At the first instance, the Court began with a historical assessment of the term ‘obscenity’, in a manner that did not impose a threat to protected speech. By referring to judgments in Roth v. United States, Miller v. California and Interstate Circuit, Inc. v. Dallas, it argued that the contemporary community standards test as set forth in Miller furnished a valuable First Amendment safeguard, as it allowed the material not to be judged by a juror’s own personal opinion but by its impact on an average person. However, it differentiated the present case on the ground that it concerned the crucial question as to whether ‘technological limitation would render the reliance by the statute on community standards constitutionally infirm’ [p. 12]
On this question, the Court noted that community standards are not required to be defined by reference to a particular geographic area [quoting Jenkins v. Georgia, 418 U. S. 153, 157 (1974)]. As a result, a juror is bound to draw upon his ‘personal knowledge or vicinage’ in the absence of a geographic specification [p. 14] and consequently reach inconsistent solutions depending upon the location, as to whether a content can be deemed to harmful to minors. Drawing on this line of reasoning, the Court concluded that a web publisher, in the absence of an ability to limit access on a geographic basis (note that geo blocking technology was not evolved at that time), would have no choice but to enforce community standards on all speakers on the Web. Doing so would impose an overreaching burden and an undue restriction on constitutionally protected speech.
It is important to note that the Court had relied on a similar line of reasoning to strike down CDA in Reno v ACLU. In that case, the Court had adjudged that an application of community standards test on the internet would mean that a communication available on a national basis would have to subscribe to the standard of the community most likely to be offended. Notably, the Court of Appeals in Ashcroft drew heavily on this to hold that this defect under the CDA was not sufficiently addressed by COPA.
The Court, however, hailed some significant corrections under COPA over the CDA, such as a narrower applicability, a well-defined understanding of content ‘harmful to minors’ or an exclusion of material with a ‘serious value’ for minors. This had a substantial effect to limit the statute’s unprecedented breadth and vagueness. The requirement of observing community standards while disseminating material over the Web, was, therefore, held not to be violative of the First Amendment by the Court.
Two particular cases here are worth noting: Hamling v. United States 418 U. S. 87 (1974) and Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989). In both the cases, the Supreme Court had construed the reliance on community standards as a means to regulate speech, and concluded that a statute’s reliance on community standards while distributing materials was not substantial enough to violate First Amendment. The Court of Appeals in the present case, however, disregarded these rulings on the ground that the defendants in the aforementioned cases had an ability to ‘control the distribution of the controversial material with respect to the geographic communities into which they released it’ [p. 19], unlike the present case.
While overruling the Court of Appeals on this front, the Supreme Court noted that though it was true that the speaker in Hamling and Sable had an ability to target the release of the material in particular geographic areas, it was nevertheless not integral to the legal analysis in those cases. Consequently, the Court did not find it necessary to allow the internet’s ‘unique characteristics’ to justify adopting an approach different from the one it set forth in Hamling and Sable. [p. 20]
On the issue of the statute’s overreach requiring web publishers to shield materials behind age verification screens, the Supreme Court held that the Respondents failed to provide enough basis for the Court to disregard the narrow range of content restricted by COPA. According to the Court, COPA was analogous to the definition of obscenity laid down in Miller and hence, consistent with the holdings in Hamling and Sable.
On the basis of above, the Court voted 8-1 to reverse the Third Circuit decision. The ruling of the Supreme Court in the present case was limited to the extent that a reliance on community standard was not, by itself, a threat to First Amendment. The Court declined to delve into any other aspects, including whether the statute was constitutionally vague or whether it will survive strict scrutiny analysis. These questions were remanded to the Court of Appeals for further proceedings.
Ashcroft witnessed five diverse opinions, and though five justices signed on various portions of Judge Thomas’ opinion, the only conclusion they agreed on was the failure of community standards criteria to be a sole factor to render a statute substantially overbroad for the purpose of First Amendment. That said, there was a significant divergence over the application of community standards to the internet by Judges.
Justice Thomas, joined by Justice Scalia and Chief Justice Rehnquist, followed a strict interpretation in observing that jurors may draw upon personal knowledge of their own communities, where the law does not specify a particular geographic area. This may lead to a conformity with varying local standards, which is acceptable. According to this view, unreasonable local standards are moderated by the ‘serious merit’ criterion laid in Reno, which enables appellate courts to set ‘a national floor for socially redeeming value’ [p. 16].
Justices O’Connor and Breyer each wrote separately arguing for the use of a ‘national standard’ for obscenity for regulation of the internet. According to Justice O’Connor, the use of local community standards can lead to problems in regulation of the internet in future, for both adults and children alike. She noted that while Miller allowed the application of local standards, it did not mandate their use, and disputed the Court’s earlier conclusion that a national standard is ‘unascertainable’. Justice Kennedy suggested that Third Circuit’s community standards rationale “stated and applied at such a high level of generality’ could not be sustained [p. 29].
Justice Stevens, the sole dissenter on the bench, opined that in the context of the internet, the community standards were more of a ‘sword rather than a shield’ as when ‘a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web’ [p. 40]. He nevertheless concluded that the changes were insufficient to cure the law’s constitutional deficiencies.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court judgment expands freedom of expression. The majority opinions in Ashcroft I and Ashcroft II reaffirmed the high level of constitutional protection accorded to the internet. It also fundamentally reversed the approach of the Court vis-à-vis transmission of speech through new technologies in the decades prior to Reno v ACLU (1997). Of particular importance is the strong and clear recognition of chilling effects on speech in materials transmitted through the internet by the Court in comparison to other mediums such as broadcasting, telecommunications or cable, where the approach of the Court was only incremental in the initial years. Despite the strikingly different approaches towards First Amendment protections noted by diverse opinions in both the cases, a common extended application of free speech principles to the internet was central to the judgment of the Court. COPA was finally declared unconstitutional in ACLU v. Mukasey (Ashcroft III) much later in 2009. Nevertheless, the significance of the case has only strengthened in the years that followed.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
U.S. Supreme Court cases are binding and mandatory authority on all lower courts in the United States. The near-unanimous decision of the Court was crucial in reopening doctrinal debates in the Court’s obscenity cases of the 1960s. The judgment of the Court set a high precedential value for future cases expanding free speech protections and prevented shrinkage of the Internet public sphere over subsequent years.
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