In recent years, Congress has tried to make and pass laws that will control sexual material on the Internet -- and do so constitutionally. In 1996, the Communications Decency Act (CDA) was passed as part of the large Telecommunications Act of 1996, the first major overhaul of telecommunications policy in many years.
CDA provided for criminal and civil penalties to anyone who "by means of a telecommunications device knowingly makes, creates or solicits and initiates the transmission" of anything "obscene, lewd, lascivious, filthy or indecent" to a minor. This language was so broad that even an e-mail from a mother to her 17-year-old college son telling him to buy condoms would have been a violation.
The Supreme Court overturned CDA in 1997 in Reno v. the American Civil Liberties Union. In that case, the Court said that CDA was overly broad and included speech that might well be protected by the First Amendment. The Court added that there are other options for parents to control what their kids see, such as filtering software.
The Child Online Protection Act (COPA) is the latest congressional attempt to control online sexual content. It provides criminal and civil penalties for "any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors." COPA differs from CDA in that it includes only commercial sites and requires operators of those sites to put in place age verification systems.
The act also provides a so-called "affirmative defense" for commercial sites that use age verification to attempt to screen out minors. The definition of "material that is harmful to minors" is a modification to the legal definition of obscenity that the Supreme Court set out in 1973.
So will "CDA II" pass constitutional muster? At least one judge thinks it will not. The ACLU requested a temporary restraining order against COPA's enforcement from a federal district judge right after the act was passed. On Nov. 20, 1998, the judge granted the temporary restraining order based on his assessment that the plaintiffs had shown to his satisfaction that they would win a case against the new law. The ACLU website reports that the temporary restraining order has been extended until Feb. 1, 1999 with hearings scheduled Jan. 20-22.
The language of COPA strongly resembles the infamous obscenity definition found in the 1973 Supreme Court case Miller v. California. In Miller, the Court used terminology that defies common-sense understanding; to be deemed obscene (and thus unworthy of First Amendment protection), material must "appeal to the prurient interest" of the average person applying "contemporary community standards;" describe sexual conduct "in a patently offensive way;" and lack "serious literary, artistic, political or scientific value." COPA adopts this languages and adds to it phrases intended to narrow the scope to minors.
Because the Court has been using the Miller test for over two decades, some commentators believe that COPA has a better chance than CDA of surviving a constitutional examination. Proponents add that COPA is not intended to censor sexual material but only make it difficult for children to stumble across it while surfing the Web.
The ACLU is not convinced. Nor is the Justice Department, which had voiced serious concerns about COPA's constitutionality before its passage and is now in the position of having to defend it.
Legislatures and courts have been struggling for years to determine what is truly obscene and therefore not deserving of First Amendment protection. Common sense suggests that what might be acceptable in New York, San Francisco or Chicago might not be acceptable in Duluth, Minn., Eau Claire, Wis. or Grand Forks, N.D. Further, something acceptable in Paris, Brussels or London may face objections anywhere in America. And, while government might have an interest in helping parents control what their children see online, most probably would prefer to make that decision for themselves and their children.
Most important, laws that put in place government censorship of any kind are dangerous. On its face, COPA looks like a law designed with the best interests of parents in mind. It looks reasonable -- it even provides a defense if the purveyor of the sexual material is acting in good faith to screen out minors.
Even if one grants the good intentions of Rep. Michael Oxley, R-Ohio, author of COPA, and others, COPA is still dangerous, say opponents, because it puts control of Internet content into the hands of the government. And that provides a basis from which other governmental controls of online expression could spring. COPA has potentially far-reaching consequences for online expression of all kinds.
Although the furor over COPA has died down, the thorny problem of online sexual content will not go away so readily. Whether COPA survives or not, the debate will continue. Watch for a new round in the next few months.
Former Silha Fellow