LEGAL BRIEFS

On May 13, 2002, the United States Supreme Court reversed the landmark decision of the Third Circuit Court of Appeals, concluding that application of varying community standards to Internet communications does not, in itself, render the Child Online Protection Act (“COPA”) unconstitutionally overbroad.1 This was an unusual case for the High Court in that it was an appeal from a preliminary injunction; the Court rarely agrees to review cases that are not final.LEGAL BRIEFS

On May 13, 2002, the United States Supreme Court reversed the landmark decision of the Third Circuit Court of Appeals, concluding that application of varying community standards to Internet communications does not, in itself, render the Child Online Protection Act (“COPA”) unconstitutionally overbroad.1 This was an unusual case for the High Court in that it was an appeal from a preliminary injunction; the Court rarely agrees to review cases that are not final. The majority of Justices decided to “remand” (read: send back) the case to the Court of Appeals for further consideration of the constitutional issues raised by the parties.

The narrow grounds upon which the Third Circuit invalidated COPA were, to be sure, ground-breaking. Striking down the law based on the community standards issue essentially forced the Supreme Court to take the case, reverse it, and send it back for a final decision on the other constitutional issues. Thus, the preliminary injunction will remain in effect while the courts work this out.

The Third Circuit Court of Appeal could still readily declare COPA unconstitutional on vagueness or other overbreadth grounds, or even strike the law down based on failure to meet the strict scrutiny test applicable to content-based restrictions on speech. For those Webmasters seeking to provide free hardcore materials on the Web, this additional “hold time” will be seen as a benefit. But for the reasons which follow, the Supreme Court’s decision has struck a critical blow to First Amendment jurisprudence, and will likely clear the way for obscenity prosecutions against adult Webmasters, post haste.

BACKGROUND

Although much has been written and said about the COPA law and its various court challenges, it is worth restating that the Third Circuit Court of Appeal invalidated COPA based on the perceived inability to constitutionally apply the varying local community standards, which exist throughout the United States, to global communications such as those on the World Wide Web. Any law that is based on such a “heckler’s veto” by the most prudish community is, by definition, overbroad and prohibits a substantial amount of protected expression, according to the Circuit Court. With the swipe of a pen, the plurality of the Supreme Court, acting in this instance through Justice Thomas, wiped away all of those strong constitutional concerns. The Court concluded: “It is sufficient to note that community standards need not be defined by reference to precise geographic area.”2

The Supreme Court first raised the community standards concern in Reno v. ACLU,3 and noted that the community standards criteria as applied to the Internet means that any communications available to a nationwide audience will be judged by the standards of the most puritanical community. Responding to this concern in the COPA case, the Court simply concludes, “[t]he fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional.”4 So much for that argument!

OBSCENITY VERSUS COPA

The guilt or innocence of a Webmaster alleged to have distributed obscene material via the World Wide Web now will be left to the vagaries of individual jurors who will be instructed to apply the concept of community standards without geographic specification.5 The Court refused to speculate as to what a hypothetical jury may or may not do in such instance.6 The true landmine lurking in this Opinion is its effect on adult obscenity prosecutions, not its application to COPA. Justice Thomas states, “[t]he CDA’s ban on the knowing transmission of obscene messages survived scrutiny because obscene speech enjoys no First Amendment protection.”7 What? It is beyond dispute that the obscenity provisions were never challenged in Reno, and no such ruling has ever been rendered by the United State Supreme Court. While Justice Thomas later refers to this ruling as a “suggestion that the application of the CDA to obscene speech was constitutional,”8 it is clear that the majority of Supreme Court Justices will have no constitutional problem applying inconsistent local community standards to obscenity prosecutions against adult Webmasters.

Justice Thomas later reveals the real concern underlying the decision: “If we were to hold COPA unconstitutional because of its use of community standards, federal obscenity statutes would likely also be unconstitutional as applied to the Web.”9 The Supreme Court declined to prevent the Department of Justice from prosecuting obscenity on the Internet by striking down COPA, and reversed a good decision by the Third Circuit Court of Appeals.

NOW WHAT?

For years, Adult Webmasters have been counseled to comply with COPA regardless of its constitutionality or enforceability. Keeping erotica away from minors is simply the right thing to do, and lessens the odds of being successfully prosecuted for obscenity violations. Providing free adult imagery to minors also undermines the legitimate pay site industry that is struggling to make a profit while contemporaneously keeping adult material away from children. Accordingly, the practical effect of the Court’s decision, which may ultimately result in COPA being upheld, is not necessarily a negative result for the adult industry.

The tragedy in this case is the fact that the Supreme Court was forced to address the community standards issue, which parenthetically was not even raised or briefed by the parties to the underlying litigation. The failure to raise that issue in the lower courts may well have been an intentional, well-reasoned decision by the ACLU, and its allies, so that the Supreme Court would not be provided with an opportunity to do exactly what it did in this case. After the Court’s recent decision, adult Webmasters cannot complain about being held to widely inconsistent and inherently unknowable community standards throughout the United States. Webmasters will simply have to play the odds because: “[n]ational distributors choosing to send their products in interstate travels [are] forced to cope with the community standards of every hamlet into which their goods [might] wander.”10

RAYS OF HOPE
The concurring opinions issued in the COPA case provide some rays of hope for the continued viability of the community standards argument, however. Justice O’Connor notes:

“But Respondent’s failure to prove substantial overbreadth on a facial challenge in this case still leaves open the possibility that the use of local community standards will cause problems for regulation for obscenity on the Internet, for adults as well as children, in future cases. In an as-applied challenge, for instance, individual litigants may still dispute that the standards of a community more restrictive than theirs should apply to them.”11

Accordingly, adult Webmasters may be forced to make the inconsistent community standards argument on a case-by-case basis, as a defense to criminal prosecutions at the state or federal levels. While this may not sound like the ideal forum within which to comfortably make constitutional law, it appears to be the only realistic avenue of redress on this issue.

COMMUNITY BLOCKING

Interestingly, the Court noted that under current technology, it does not appear that a speaker on the Web possesses the ability to communicate only with individuals located in targeted geographic communities.12 As technology develops, particularly the use of global positioning satellites (GPS) and other locating devices, Webmasters may soon be capable of geographically blocking certain Internet communications based on the approximate location of the end user. In fact, the United States Patent Office has already accepted a Patent Application for such technology.

In addition, the standards of any particular community may become more discernable as time and technology move forward. Imagine a Website containing the acceptability ratings for every community within the United States of virtually every type of sexual content, based on statistically accurate Gallup PollsTM. Such information compilation is certainly not beyond comprehension, and becomes a more realistic proposition as time goes on. Such technology and information may at least partially alleviate some of the concerns with the application of local community standards to the Internet.

Significantly, the government, in its briefing of the COPA case, suggested that a national standard for “harmful to minors” material be adopted. Justice O’Connor would have resolved this case by adopting a national standard for defining obscenity on the Internet.13 While that would certainly be one way to deal with the issue in the courts, it may happen without court intervention. With the rampant homogenization occurring at an alarming rate in the United States, resulting in cookie-cutter communities indistinguishable from each other, a national standard may develop as a practical matter regardless of developments in First Amendment law.

In the meantime, hold on to your hats, ladies and gentlemen. The Justice Department has just been given what it may perceive to be the green light to move on its long-awaited obscenity prosecutions against erotica on the Internet. It need no longer be troubled by the esoteric community standards arguments previously available to those First Amendment attorneys until May 13, 2002.

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, based in Los Angeles. Mr. Walters runs the firm’s Florida office, and represents clients involved in all aspects of adult media. Weston, Garrou & DeWitt handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com or www.FreeSpeechLaw.com.

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1 Ashcroft v. ACLU, Case Number: 00-1293 (May 13, 2002).
2 Slip op. at p.12, citing: Jenkins v. Georgia, 418 U.S. 153, 157 (1974).
3 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).
4 Slip op. at p.17, citing: Hamling v. United States, 418 U.S. 87 (1974).
5 Id. at p.12.
6 Id.
7 Id at p.4, citing: Reno at 883.
8 Id at p.20, citing: Reno at 887, 882-883. (emphasis in original)
9 Id.
10 Id at p.16.
11 Opinion of Justice O’Connor at p.2.
12 Slip op. at p.11, N.6.
13 Opinion of Justice O’Connor at p.4.

LEGAL BRIEFS

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