"Community Standards" Test is a Fatal Flaw for Federal COPA

Congress' latest effort to shield minors from "harmful" Internet content was struck down on June 22 by the U.S. Court of Appeals for the Third Circuit in ACLU v. Reno (Reno III), No. 99-1324, 2000 WL 801186 (3d Cir. June 22, 2000). In doing so, the appellate court may have thwarted future efforts by lawmakers to regulate obscenity on the Internet.

In Reno III, the Court upheld a district court injunction preventing enforcement of the Child Online Protection Act. Congress passed COPA after an earlier attempt to restrict minors' access to certain Internet content - the Communications Decency Act - was struck down by the U.S. Supreme Court in Reno v. ACLU, 521 U.S. 844 (1997) (Reno II). The Supreme Court held that the CDA's imposition of criminal penalties for the distribution of "indecent" and "patently offensive" content was vague and overbroad. Congress sought to remedy the deficiencies of the CDA by linking the penalties under COPA to Internet content that is "harmful to minors" as judged by "community standards."

Congress' attempt to create a more definitive standard was rejected by the Third Circuit. It held that COPA is a content-based regulation of speech, which under the First Amendment can only be upheld when narrowly tailored to serve a compelling government interest. Although conceding the government's interest in preventing harm to minors, the court said that by relying on community standards to determine what is harmful, the law was overbroad and burdened more speech than necessary.

The court held that community standards cannot be determined in the Internet context, because speech in that medium is not bound by geography. In order to comply with COPA, communication on the Internet would have to conform to the standards of the least tolerant segments of society. That imposes too great a burden on expression, the Court held.

By rejecting the applicability of community standards to the Internet, the Third Circuit has created a substantial roadblock to all future attempts to regulate Internet obscenity. The Supreme Court outlines its test for defining obscenity in Miller v. California, 413 U.S. 15 (1973). Miller requires that obscenity be determined by considering the view of "the average person applying contemporary community standards." If community standards for Internet communication cannot be defined, as the Third Circuit says, then the Miller test cannot be applied and obscenity cannot be defined. What cannot be defined cannot be regulated.

The Third Circuit Court made clear that its rejection of the community standards test was limited to the Internet context and should not be read as an assault on Miller or on the need to define and regulate obscenity in other contexts. However, if regulation of obscenity is prohibited in what is certain to become the most dominant communications medium, it may create pressure to lift restrictions in other contexts. Even if restrictions on obscenity survive in other areas, they may be of little practical effect if the expression they target can simply be channeled - whether as text, audio or video - through the Internet.

Ultimately, the Supreme Court will need to decide whether to end its long struggle to define obscenity, or to create an Internet-specific Miller test that accounts for the boundless geographic reach of online communication.

Erik Ugland

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This page contains a single entry by cla published on November 13, 2009 11:09 AM.

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