LEGAL BRIEFS 2

On Monday, May 13, 2002, the U.S. Supreme Court rendered its decision on an appeal regarding the Child Online Protection Act (hereinafter “Act” or “COPA”).LEGAL BRIEFS 2

On Monday, May 13, 2002, the U.S. Supreme Court rendered its decision on an appeal regarding the Child Online Protection Act (hereinafter “Act” or “COPA”). COPA, passed into law in 1998, has yet to be enforced, as it has been tied up in litigation and appeals since one month before it was to go into effect.

The Supreme Court decision is extremely relevant to adult Internet webmasters, as the Court discussed what types of standards should be utilized when scrutinizing online content for inappropriate material. While COPA deals specifically with content that might be harmful to minors, and not with obscenity, the Court’s rulings in COPA most likely will affect what kind of material websites can publish without violating obscenity laws.

COPA seeks to provide both civil and criminal penalties for the publication of online material that is harmful to minors, unless the material is protected by an age verification screen. Credit cards and debit cards are some of the vehicles that websites can utilize under the Act to verify age. As written, COPA provides that the “average person applying contemporary community standards” test shall be utilized to determine whether or not the material in question is harmful to minors – in other words, if a jury finds that the people in their “community” would think that the content is harmful to minors and the material is not behind an age verification screen, the Act has been violated. The Act does not specify, however, what “community” a jury must take into consideration to determine the standard – whether local, citywide, countywide, statewide, regional, national, global, or some other “community standard”.

Most importantly, webmasters should take from Monday’s Supreme Court decision the knowledge: 1) that COPA is still NOT enforceable, and the case is being sent back down to the Appellate Court for findings on a number of issues. It is my guess that there won’t be a final determination as to the constitutionality of the Act for quite some time; and 2) that the Supreme Court has NOT determined – yet – whether “local community standards” are the benchmark for deciding whether the Act has been violated. The narrow issue before the Court was simply whether the Act was unconstitutional based solely on its use of the phrase “contemporary community standards”. The Court held that this phrase alone did not invalidate the Act. However, the Court did not render a definitive decision as to what “community’s” standards, IF ANY, must be utilized in deciding a prosecution brought under the Act. As a byproduct, no determination has yet been made as to whether “local community standards” would apply to online obscenity prosecutions.

Soon after COPA was passed into law and before it was effective, the Act was challenged by a number of entities as being unconstitutional, particularly under the First Amendment. A Federal District Court in Pennsylvania agreed, and enjoined the Act from being enforced against website owners. The decision was appealed, and the Appellate Court (Third Circuit) agreed with the District Court that COPA was unconstitutional, on the grounds that the Act’s use of “community standards” to identify material that is harmful to minors rendered the Act substantially overbroad.

The Appellate Court reasoned that it is impractical to determine a “community standard” for the Internet, as the Internet is accessible in all communities, and so it is unreasonable to single out a specific community to decide what is and what isn’t appropriate for all communities. Further, website publishers have no geographic control over who accesses their websites. Thus, webmasters can’t limit their content to just those communities where they know their content won’t offend local sensibilities. For instance, a website operator cannot keep the Amish or citizens of Salt Lake City, where people supposedly have a low threshold as to what they find offensive, from accessing his website so as not to run afoul of the COPA law. The Appellate Court found it illogical for a jury in an overly sensitive or “puritanical” locale to determine that specific content is harmful to minors in that locale and therefore require the publication of that content to be behind age verification screens even though most other locales would find the content appropriate for minors – it would be unreasonable to allow a “fringe” community to dictate what everyone else sees on the Internet.

As such, the Appellate Court held that COPA’s requirement of looking at “community standards” when determining whether material is harmful to minors would have a chilling affect on the Internet, as website publishers would resort to the “lowest common denominator” by modifying their websites to appease the most extreme sensibilities in order to avoid a possible COPA prosecution. This would result in the shielding of content that most of us would not find offensive or harmful to minors, and which we have a constitutional right to view under the First Amendment.

The Attorney General appealed to the U.S. Supreme Court the ruling of the Appellate Court that “contemporary community standards” could not be utilized in determining whether online material is harmful to minors. Interestingly, the ONLY question presented to the Supreme Court was whether the “contemporary community standards” language alone rendered the Act unconstitutional. Please note that the court was NOT asked to determine whether a “local community standards” test was appropriate – the court was asked whether general “contemporary community standards” may be appropriate, without any specification as to what “community” was in question (i.e. local, citywide, countywide, statewide, regional, national, global, etc.)

There are nine Justices (Judges) on the U.S. Supreme Court. The majority rules – if five Justices agree, then their decision carries the day regardless of what the other four Justices may think.

Eight of the nine Justices reversed the Appellate Court ruling and held that COPA did NOT violate the First Amendment as being unconstitutionally overbroad in utilizing the “contemporary community standards” test in determining whether online material is harmful to minors. In other words, the Supreme Court decided that in a prosecution brought under COPA, the jury may appropriately be asked to determine whether their “community” would find the material in question to be harmful to minors. The Supreme Court, however, did not determine WHICH community’s sentiments would be in issue – whether local, national, or other!

There were FIVE separate opinions written by the nine judges, describing their thought processes and findings in this case. The fact that there were so many different written opinions, while not unusual, shows that there was not much agreement between the Justices as to the matters discussed. While eight of the nine Justices felt that some type of “community standard” MAY be applied as a guide for juries to determine whether the material in question is harmful to minors, they differed widely as to what “community” would be the benchmark for these cases.

Interestingly, the government argued to the Supreme Court that in prosecuting actions under COPA, it would NOT rely upon community standards of a particular geographic area, but would instruct the jury to consider the standards of the nation’s adult community as a whole, rather than standards in specific locales. The government admitted, however, that even if jurors are instructed to consider the standards of the adult population as a whole, different jurors in different locales will likely reach inconsistent conclusions as to whether material is harmful to minors, as the jurors will fall back on their personal knowledge of the standards in their particular geographic locations.

Justices Thomas, Rehnquist and Scalia inferred that “LOCAL community standards” should be the deciding factor. They reasoned that a person who publishes material online that is accessible by the entire nation must observe all of the various community standards in each locality in which his publication is accessible. In other words, if you do business somewhere, you’re held to the standards that are present in that locale, regardless of whether or not you want to be doing business there and regardless of the fact that you can’t currently prevent your material from being accessed there. These Justices stated that if a person doesn’t want to put himself at risk of a COPA prosecution, he should use another medium beside the Internet to publish his material so that he can control where his publication goes and avoid those locales where the “community” is less tolerant. These Justices held that COPA is not unconstitutionally overbroad even though there may be different outcomes in enforcing COPA because of differing “local community standards”. In my opinion, these Justices seem to be overly insensitive to the unique qualities of the Internet compared to other forms of media.

In her written opinion, Justice O’Connor agreed that it is okay for COPA to apply “community standards”, but she denounced “local community standards” and called for a NATIONAL standard in determining whether online content is obscene or harmful to minors.

Justice Breyer also held that “community standards” may be appropriate, but determined that Congress intended COPA’s “community” to refer to the nation’s adult community as a whole, rather than local communities that might differ in opinion as to what is harmful to minors. He noted: “To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s Internet veto affecting the rest of the Nation.”

Justices Kennedy, Souter and Ginsburg also concurred that the Act’s inclusion of the language “community standards” didn’t automatically invalidate COPA as unconstitutionally overbroad. On the question of WHICH community’s standards should be applied, however, these three Justices stated that there was no need at present to decide whether the Act invoked “local community standards” or some other “community standards” – the case needed to be sent back down to the Appellate Court to determine a number of issues regardless of what “community” would be applicable.

They did note, however, that if a “national community standard” is incorporated, the actual standard that would be applied by juries in reality is bound to vary by community nonetheless. In other words, even if a jury was instructed to apply a “national community standard”, the jury would apply what they know best, which would presumably be the standards in their own local community. In a nod toward the interests of Internet publishers, Justices Kennedy, Souter and Ginsburg noted that it is not realistic for Congress to impose the community standards of Maine or Mississippi (small conservative communities) on Las Vegas and New York (large liberal communities). Thus, while these three Justices seemed to dislike a “national community standard”, they also shied away from a “local community standard”, suggesting that these Justices may determine COPA unconstitutional on grounds other than the “community standard” test, since they appear to dislike each of these tests as applied to the Internet. By finding COPA unconstitutional on other grounds, they can avoid the question of which “community standards”, if any, should apply to the Internet.

Furthermore, these Justices indicated that should it be determined that there is in fact a wide variance among localities as to what they deem to be harmful to minors, then this variance may very well support the permanent enjoinment of the enforcement of the Act. These Justices seem to infer that even if a “national community standard” is applied, COPA may still be unconstitutional because of inevitable inconsistent findings. They also raised a lot of questions regarding issues that were not determined in the lower courts, and STRONGLY inferred that the Act may indeed be overbroad and hence unconstitutional for a number of reasons, regardless of which “community’s” standards are applied.

Finally, Justice Stevens wrote a dissenting opinion. He was the only Justice who agreed with the Appellate Court on its decision that “community standards”, whether local, national or otherwise, are inapplicable to the Internet. He stated that “community standards” cannot be applied because too much otherwise protected speech would be restricted because of intolerant communities. He indicated that public opinion is too diverse to impose any “community standards” on the Internet. And he, like Kennedy, Souter, Ginsburg, and the government itself, indicated that a “national community standard” is not the answer, as there would still be a variance of opinion based upon where the cases are tried.

In my opinion, the worst outcome for the adult Internet industry would be for the U.S. Supreme Court to decide when the case is next before it that COPA is constitutional as written, and that “local community standards” are the determining factor as to whether specific online material is harmful to minors. If the court made such a determination, then it is a foregone conclusion that the court would determine that “local community standards” apply equally as well to online obscenity prosecutions. Hence, a Bible-beating community in Georgia could determine that images of oral sex are obscene, and force the removal of ALL such images from the Internet even though the vast majority of the Nation may not deem such images obscene. If “local community standards” are determined to be applicable to the Internet, then wise webmasters will be forced to delete all material from their websites which they believe the most prudish of people may find offensive – which would be just about ALL online adult content. The sentiments of the minute minority would prevail over those of the overwhelming majority.

Monday’s Supreme Court ruling provides muddled guidance as to which direction the court is leaning on the “community standards” issue. The current scorecard is three Justices in favor of imposing “local community standards” on obscenity/harmful to minors prosecutions (Thomas, Rehnquist and Scalia), three Justices against imposing “local community standards” (O’Connor, Breyer and Stevens), and three Justices that declined to make a decisive determination on this issue at this time (Kennedy, Souter and Ginsburg), though they seem to be leaning against “local community standards”. However, and this is a BIG however, these three latter Justices have already indicated that they feel that even if a “national community standard” is applied, juries will in actuality apply the standard of their local community, which they also see as problematic. So, these Justices may lean toward finding COPA unconstitutional on the basis that it is unduly overbroad, regardless of what “community standards” are used, as there will be inconsistent verdicts based upon prosecutions occurring in different locales.

Many webmasters are concerned that with Monday’s Supreme Court ruling, which held that “community standards” MIGHT be an appropriate benchmark when determining whether online material is harmful to minors, the door is immediately open for Attorney General Ashcroft to begin in earnest obscenity prosecutions against adult Internet websites. In my opinion, to jump right in with prosecutions would be foolish on Ashcroft’s part. While the Supreme Court has held that the inclusion of “community standards” language in COPA does not alone render the Act unconstitutional, the Court has yet to definitively rule upon WHICH “community standards” may pass constitutional muster, IF ANY. Thus, if Ashcroft begins an obscenity prosecution against a webmaster, which guidelines will the jury be instructed to follow – “Local community standards”? “National community standards”? Some other “community standards”? No matter which standards Ashcroft chose to apply, any adverse decision would be appealed by the webmaster, as the Supreme Court has yet to determine which standard, if any, WILL apply. Without that guidance from the Supreme Court, in my opinion, any obscenity prosecution by Ashcroft would be premature and couldn’t reach a final conclusion UNTIL the Supreme Court makes a determination regarding which standards, if any, do apply to the Internet.

The best-case scenario for our industry would be for the Appellate Court, to which the COPA case has been remanded, to find that COPA is unconstitutional on grounds other than the “community standards” issue. If such a ruling is made, and the Supreme Court agrees with that ruling, then COPA will join the scrap heap with the Communications Decency Act of 1996 (CDA), and the question of whether “local community standards” or “national community standards” or if ANY “community standards” are applicable to the Internet will remain undecided until Congress takes a third crack at passing a law to prevent access by children to inappropriate online material – or until CDA is before the Supreme Court on the “community standards” issue. It may be another few years, however, before COPA makes its way through the Appellate Court/Supreme Court cycle again, and either CDA or a new law does likewise.

In the meantime, webmasters need to be prepared for the day Congress may get it right and webmasters are required to have age verification screens to limit access by minors to pornographic material. In fact, webmasters MUST be taking some measures to limit access by minors immediately, for a couple of reasons. First, children should not be allowed to access online material that is harmful to them – we should take any and every measure in our power to prevent children from seeing inappropriate material, for the children’s sake. Second, webmasters LOSE money when children access their sites. Children eat up bandwidth and don’t buy memberships to offset the spent bandwidth. So, putting up a warning page at the very least is not only the right thing to do, it is the prudent thing to do.

In conclusion, Monday’s ruling provides little guidance to webmasters in regard to what material may eventually be required to be behind age verification screens. We will have to wait for the Supreme Court to determine which tests and standards, if any, will be applied to online material – and we may be waiting a long time for that determination. Regardless, webmasters should take measures now to limit access to pornographic material by minors.

Gregory J. Geelan, J.D., is President and CEO of YNOT Network, LP, and has been practicing law for ten years. He can be reached at greg@ynotmasters.com.

LEGAL BRIEFS 2

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