American Civil Liberties Union v. Ashcroft (2002)
Encyclopedia
Ashc, 535 U.S. 564 (also called Ashcroft v. ACLU or Ashcroft v. American Civil Liberties Union) was a 2002 United States
legal court case involving the American Civil Liberties Union
and the United States government. The Supreme Court of the United States
decided the case, which began in 1999, and found that, contra the Court of Appeals for the Third Circuit
, "COPA's reliance on community standards to identify 'material that is harmful to minors' does not by itself render the statute substantially overbroad for purposes of the First Amendment
" (majority opinion). This decision came just four weeks after Ashcroft v. Free Speech Coalition
, which dealt with a similar law, the Child Pornography Prevention Act of 1996
(CPPA).
COPA
was Congress's second attempt to criminalize the Internet distribution of what it considered pornography
, including simulated pornography
and artwork.
COPA enforces penalties of a $50,000 fine and six months in prison for the posting for "commercial purposes" of content on the internet that is "harmful to minors". Material that is "harmful to minors" is defined as:
case to better define the term "obscenity."
Opponents of COPA argued that child pornography is already illegal, and COPA would not be effective because it would waste too much time going after individual sites within the US which could simply set up shop overseas if shut down. It was also argued that COPA would infringe upon rights of adults to receive non-pornographic/harmful messages, and that COPA was not the least invasive or most efficient way to protect children from harmful online content.
majority opinion,
COPA opponents argued that self installed filters were much more effective at blocking obscene/indecent content, and would allow individuals to choose what content they wanted to see, not the government. Opponents also held that legal speech would be made criminal by COPA, and that adults would be prevented from seeing legal content if they did not have a credit card to get past security screens. It was also argued that in some cases fully complying with COPA would not have guaranteed freedom from prosecution (Stevens) and that the plan was flawed because some minors do have their own credit cards, and could thus go around the screens with ease.
Issues:
Filters:
They have four problems.
1. Under blocking where some pornographic material is still able to pass through.
2. Software costs money and not every family has the $40, or so, necessary for installation.
3. Filtering depends upon the parent’s willingness to decide which web sites are suitable for their children and enforcing this.
4. Software blocking lacks precision. A lot of valuable material is blocked along with the harmful content.
Wording:
The phrases, “prurient interest” and “no serious value” block material that does not fall within the law. For example, material that would be blocked under these phrases are: serious discussions about birth control practices, homosexuality, or the account by a 15-year-old girl who was raped, and a guide to the self-examination of testicular cancer.
There is an uncertainty about how to define close to obscene material that may be on the border of being defined as indecent.
Age Verification:
Age screening could lead to embarrassment in some users.
This requires all adults to enter a credit card number or age verification number, even if they are childless.
Problem: Children may obtain a parents credit card number, if desired.
Decision: COPA should be enjoined because the statute likely violates the first amendment. There are less restrictive alternatives to COPA.
Blocking and filtering software are less restrictive. Filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source.
Childless adults can access information they have a right to see without having to identify themselves.
Adults with children may turn off their filters to access material they wish to view.
Congress passed two more less restrictive alternatives to COPA: the prohibition of misleading domain names and the minor safe “dot-kids” domain name.
Blocking and filtering software also blocks all pornography (40% of content deemed harmful to minors comes from overseas).
They argued that Congress could not have possibly achieved its statutory objective in another, less restrictive way, that COPA did not impose a large amount of limits on free speech, and that the Act was tailored to fit a compelling interest . The reasons they give are as follows:
Filters are among the suggested methods of using less restrictive means to protect minors from “harmful” content. However, filtering technology that is available today lacks in several different ways.
1- Filtering is faulty. It allows some harmful material to get through because filters use a system of matching key words and phrases, and lack the capability to distinguish between images that are deemed “obscene” and those that are not.
2- In this same sense, filters lack precision. They block out some valuable material along with the harmful material deemed “obscene”. An example of this given in Justice Breyer’s
dissent is the ACLU informing Congress during a hearing that filtering software “blocks out valuable and protected information, such as information about the Quaker religion, and web sites including those of the American Association of University Women
, and the AIDS Quilt. This is an extreme weakness of filters, something that will probably be used in arguments against them until, and if, new technology is developed that is able to define and deem what is “obscene” and what is not.
3- It is not possible for a parent to control filters on all computers, and the likelihood of a minor to simply use a different computer without a filter on it is extremely high. This is the problem with filtering content at the user end, and not at the source. It is impossible to enforce parental monitoring of their children. Justice Breyer uses an example illustrating that
“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.”
4- Filtering software costs money.
Justice Breyer then argues a second point: The court had decided that the Act was not narrowly tailored to fit Congress’s “compelling interest”, or its intended objective. This means that the court deemed that COPA included too large a scope of regulated content to be determined constitutional under the First Amendment, and in turn it was not capable of achieving Congress’s goal of protecting minors from harmful online content. Justice Breyer argues the contrary.
In Justice O'Connor's
concurrence, she says that the Act as "properly interpreted" imposes “only a modest burden on protected speech”. She uses the Miller v. California
case to highlight this. Comparing the Miller precedent’s definition of what is deemed legally obscene, she shows how COPA’s terminology is extremely similar to that of the Miller case. She argues that “the only significant difference between the present statute and Miller’s definition consists of the addition of the words “with respect to minors”, and “for minors”, and that this broadens the Act’s scope only slightly.
She also argues that the Act was tailored to fit a compelling interest, and that the use of “alternative” and “less restrictive” regulation such as filters was not tailored to fit a compelling interest, and she in fact argued that filters are the “status quo”. She argues that filters, as they are readily available now, do not further Congress’s goals in any way, and in turn do not pursue a compelling interest. Sticking with the “status quo” is always easier, but it does not further the goal, and it only allows the problem to perpetuate. She gives the example of “despite the present existence of filtering software, children are still gaining access to harmful material”.
She says that the court should not have asked whether the Act uses the least restrictive means possible to protect minors from harmful content, but whether it advances Congress's goals?
She concludes that COPA does not enact major burdens on free speech when it is properly interpreted. That it “significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography”. And that there is no “practically available, less restrictive way similarly to further this compelling interest.”
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
legal court case involving the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
and the United States government. The Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decided the case, which began in 1999, and found that, contra the Court of Appeals for the Third Circuit
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
, "COPA's reliance on community standards to identify 'material that is harmful to minors' does not by itself render the statute substantially overbroad for purposes of the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
" (majority opinion). This decision came just four weeks after Ashcroft v. Free Speech Coalition
Ashcroft v. Free Speech Coalition
Ashcroft v. Free Speech Coalition, , struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech." The case was brought against the Government by the Free Speech Coalition, a "California...
, which dealt with a similar law, the Child Pornography Prevention Act of 1996
Child Pornography Prevention Act of 1996
The Child Pornography Prevention Act of 1996 was a United States federal law to restrict child pornography on the internet, including virtual child pornography....
(CPPA).
COPA
Child Online Protection Act
The Child Online Protection Act was a law in the United States of America, passed in 1998 with the declared purpose of restricting access by minors to any material defined as harmful to such minors on the Internet...
was Congress's second attempt to criminalize the Internet distribution of what it considered pornography
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
, including simulated pornography
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
and artwork.
COPA enforces penalties of a $50,000 fine and six months in prison for the posting for "commercial purposes" of content on the internet that is "harmful to minors". Material that is "harmful to minors" is defined as:
"any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that—
"(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
"(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
"(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." §231(e)(6).
History
In 1996 Congress created the Communications Decency Act, (CDA) as part of the 1996 Telecommunications Act. The CDA prohibited the use of the internet to purposely send indecent material to those under 18 years of age. The CDA was found unconstitutional in the decision of Reno v. ACLU, because in the CDA the internet was held to the same standards as broadcast media. The court held that because the internet is less “invasive” than broadcast media, the same rules could not apply to the two entities. Despite this ruling, however, the court agreed that the government does have a responsibility to protect minors from obscene/indecent internet content. Congress's second attempt to answer to this was the Child Online Protection Act (COPA) of 1998. COPA made it illegal for any commercial sources to allow minors access to “harmful” content, drawing on language from the landmark Miller v. CaliforniaMiller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...
case to better define the term "obscenity."
Opponents of COPA argued that child pornography is already illegal, and COPA would not be effective because it would waste too much time going after individual sites within the US which could simply set up shop overseas if shut down. It was also argued that COPA would infringe upon rights of adults to receive non-pornographic/harmful messages, and that COPA was not the least invasive or most efficient way to protect children from harmful online content.
Time line
- June 1997: In Reno v. American Civil Liberties UnionReno v. American Civil Liberties UnionReno v. American Civil Liberties Union, , is a United States Supreme Court case, in which all nine Justices of the Court voted to strike down anti-indecency provisions of the Communications Decency Act , finding they violated the freedom of speech provisions of the First Amendment. Two Justices...
, anti-indecency provisions of the Communications Decency ActCommunications Decency ActThe Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...
are struck down in a unanimous decision. - 1998: Congress passes the Child Online Protection ActChild Online Protection ActThe Child Online Protection Act was a law in the United States of America, passed in 1998 with the declared purpose of restricting access by minors to any material defined as harmful to such minors on the Internet...
(COPA), an amendment to the Communications Act of 1934Communications Act of 1934The Communications Act of 1934 is a United States federal law, enacted as Public Law Number 416, Act of June 19, 1934, ch. 652, 48 Stat. 1064, by the 73rd Congress, signed by President Franklin D. Roosevelt, codified as Chapter 5 of Title 47 of the United States Code, et seq. The Act replaced the...
, to address the concerns from the Reno case. - 1999: A judge in the Eastern District of PennsylvaniaUnited States District Court for the Eastern District of PennsylvaniaThe United States District Court for the Eastern District of Pennsylvania is one of the original 13 federal judiciary districts created by the Judiciary Act of 1789...
granted a preliminary injunction blocking COPA enforcement. The ruling is appealed to the U.S. Court of Appeals for the Third CircuitUnited States Court of Appeals for the Third CircuitThe United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
. - 2000: The Third Circuit affirmed the preliminary injunction against COPA because they deemed it impossible to apply “contemporary community standards” to the internet. The case is then appealed this decision to the Supreme Court.
- May 2002 (original ruling): The U.S. Supreme Court affirmed the injunction, and sent the case back to the Third Circuit, ruling that using community standards would cause more harm than good.
- October 2002: The Third Circuit hears the case a second time.
- March 2003: The Third and once again the injunction was upheld in March 2003. A second appeal is launched to the Supreme Court.
- June 2004: The Supreme Court reaffirms the original preliminary injunction.
- October 2006: The case goes to trial in the Eastern District of Pennsylvania.
- March 2007: A permament injunction is granted. The case is appealed to the Third Circuit.
- July 2007: The permanent injunction is upheld by the Third Circuit. The case is appealed to the Supreme Court.
- January 2009: The Supreme Court refuses to hear the appeal, effectively striking COPA from the United States code, with the law never having taken effect.
ACLU v. Ashcroft
The case ACLU v. Ashcroft started on January 11, 1999. According to Justice Thomas'sClarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
majority opinion,
...COPA defines "material that is harmful to minors" as
- "any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene
ObscenityAn obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
or that—
- "(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
- "(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
- "(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." 47 U. S. C. §231(e)(6).
COPA opponents argued that self installed filters were much more effective at blocking obscene/indecent content, and would allow individuals to choose what content they wanted to see, not the government. Opponents also held that legal speech would be made criminal by COPA, and that adults would be prevented from seeing legal content if they did not have a credit card to get past security screens. It was also argued that in some cases fully complying with COPA would not have guaranteed freedom from prosecution (Stevens) and that the plan was flawed because some minors do have their own credit cards, and could thus go around the screens with ease.
Issues:
Filters:
They have four problems.
1. Under blocking where some pornographic material is still able to pass through.
2. Software costs money and not every family has the $40, or so, necessary for installation.
3. Filtering depends upon the parent’s willingness to decide which web sites are suitable for their children and enforcing this.
4. Software blocking lacks precision. A lot of valuable material is blocked along with the harmful content.
Wording:
The phrases, “prurient interest” and “no serious value” block material that does not fall within the law. For example, material that would be blocked under these phrases are: serious discussions about birth control practices, homosexuality, or the account by a 15-year-old girl who was raped, and a guide to the self-examination of testicular cancer.
There is an uncertainty about how to define close to obscene material that may be on the border of being defined as indecent.
Age Verification:
Age screening could lead to embarrassment in some users.
This requires all adults to enter a credit card number or age verification number, even if they are childless.
Problem: Children may obtain a parents credit card number, if desired.
Decision: COPA should be enjoined because the statute likely violates the first amendment. There are less restrictive alternatives to COPA.
Blocking and filtering software are less restrictive. Filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source.
Childless adults can access information they have a right to see without having to identify themselves.
Adults with children may turn off their filters to access material they wish to view.
Congress passed two more less restrictive alternatives to COPA: the prohibition of misleading domain names and the minor safe “dot-kids” domain name.
Blocking and filtering software also blocks all pornography (40% of content deemed harmful to minors comes from overseas).
Dissenting opinions
A large portion of the opinion of this brief involved the opinions of those who dissent from the decision the court has made, or who disagree with it. Several justices in this case filed opinions concurring in the judgment, and for many different reasons. Several justices joined in disagreement with the court’s decision to invoke an injunction on the Child Online Protection Act. Here are some of the reasons they disagreed:They argued that Congress could not have possibly achieved its statutory objective in another, less restrictive way, that COPA did not impose a large amount of limits on free speech, and that the Act was tailored to fit a compelling interest . The reasons they give are as follows:
Filters are among the suggested methods of using less restrictive means to protect minors from “harmful” content. However, filtering technology that is available today lacks in several different ways.
1- Filtering is faulty. It allows some harmful material to get through because filters use a system of matching key words and phrases, and lack the capability to distinguish between images that are deemed “obscene” and those that are not.
2- In this same sense, filters lack precision. They block out some valuable material along with the harmful material deemed “obscene”. An example of this given in Justice Breyer’s
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
dissent is the ACLU informing Congress during a hearing that filtering software “blocks out valuable and protected information, such as information about the Quaker religion, and web sites including those of the American Association of University Women
American Association of University Women
The American Association of University Women advances equity for women and girls through advocacy, education, and research. It was founded in 1882 by Ellen Swallow Richards and Marion Talbot...
, and the AIDS Quilt. This is an extreme weakness of filters, something that will probably be used in arguments against them until, and if, new technology is developed that is able to define and deem what is “obscene” and what is not.
3- It is not possible for a parent to control filters on all computers, and the likelihood of a minor to simply use a different computer without a filter on it is extremely high. This is the problem with filtering content at the user end, and not at the source. It is impossible to enforce parental monitoring of their children. Justice Breyer uses an example illustrating that
“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.”
4- Filtering software costs money.
Justice Breyer then argues a second point: The court had decided that the Act was not narrowly tailored to fit Congress’s “compelling interest”, or its intended objective. This means that the court deemed that COPA included too large a scope of regulated content to be determined constitutional under the First Amendment, and in turn it was not capable of achieving Congress’s goal of protecting minors from harmful online content. Justice Breyer argues the contrary.
In Justice O'Connor's
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
concurrence, she says that the Act as "properly interpreted" imposes “only a modest burden on protected speech”. She uses the Miller v. California
Miller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...
case to highlight this. Comparing the Miller precedent’s definition of what is deemed legally obscene, she shows how COPA’s terminology is extremely similar to that of the Miller case. She argues that “the only significant difference between the present statute and Miller’s definition consists of the addition of the words “with respect to minors”, and “for minors”, and that this broadens the Act’s scope only slightly.
She also argues that the Act was tailored to fit a compelling interest, and that the use of “alternative” and “less restrictive” regulation such as filters was not tailored to fit a compelling interest, and she in fact argued that filters are the “status quo”. She argues that filters, as they are readily available now, do not further Congress’s goals in any way, and in turn do not pursue a compelling interest. Sticking with the “status quo” is always easier, but it does not further the goal, and it only allows the problem to perpetuate. She gives the example of “despite the present existence of filtering software, children are still gaining access to harmful material”.
She says that the court should not have asked whether the Act uses the least restrictive means possible to protect minors from harmful content, but whether it advances Congress's goals?
She concludes that COPA does not enact major burdens on free speech when it is properly interpreted. That it “significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography”. And that there is no “practically available, less restrictive way similarly to further this compelling interest.”
External links
- Text of the decision from FindLawFindLawFindLaw is a business of Thomson Reuters that provides online legal information and online marketing services for law firms. FindLaw was created by Stacy Stern, Martin Roscheisen and Tim Stanley in 1995, and was acquired by Thomson West in 2001....
- Summary of COPA cases from People for the American WayPeople For the American WayPeople For the American Way is a progressive advocacy group in the United States. Under U.S. tax code, People For the American Way is organized as a tax-exempt 501 non-profit organization.-Purpose:...
- Summary of PFAW's involvement in ACLU v. Ashcroft
- Washington Post transcript of online discussion of COPA with ACLU Associate Legal Director Ann Beeson