Cyberporn and Censorship: Constitutional Barriers to Preventing Access to Internet Pornography by Minors

By Simon, Glenn E. | Journal of Criminal Law and Criminology, Spring 1998 | Go to article overview

Cyberporn and Censorship: Constitutional Barriers to Preventing Access to Internet Pornography by Minors


Simon, Glenn E., Journal of Criminal Law and Criminology


I. INTRODUCTION

In Reno v. ACLU,(1) the Supreme Court ruled on the constitutionality of two provisions of the Communications Decency Act of 1996.(2) Congress enacted the Communications Decency Act (CDA) in order to curtail the dissemination of pornography to minors via the Internet.(3) The Court found two provisions of the CDA to be unconstitutional due to their vagueness and the chilling effect their application would have on Internet communications.(4)

This Note concludes that the Court's holding was correct in light of established First Amendment precedent. The Court's application of strict scrutiny(5) was proper given the importance of the right to free expression. While the Government has a legitimate and compelling interest in protecting minors from sexually explicit material that may be harmful to them,(6) the CDA was not narrowly tailored to conform to the Government's narrow prerogative in this area.(7)

This Note argues that any future attempt to regulate sexually explicit Internet transmissions must be drafted with sufficient specificity such that no ambiguity exists as to the scope of its enforcement.(8) This Note also rejects the Government's stance that regulation of Internet pornography is justified as an exercise of its zoning power. The interpretation of the CDA under a zoning paradigm undermines the foundations of free expression and violates the Equal Protection Clause of the Fourteenth Amendment.(9)

II. BACKGROUND

In recent years, the Supreme Court has struggled to prevent access by minors to speech that may harm them, while safeguarding the First Amendment right of adults to engage in nonobscene speech. The Court has addressed the constitutionality of restricting the rights of minors to access constitutionally protected speech(10) in a variety of fora.(11) Generally, the Court measures the Government's interest in protecting minors from harmful speech relative to the ease with which minors can access that speech.

A. RELEVANT PRECEDENT

1. Unprotected Speech

It is well established that the Government lawfully may impose different regulations on minors than it does on adults. In Ginsberg v. New York,(12) the Court upheld the constitutionality of a New York statute(13) forbidding the sale to minors under age seventeen of material considered obscene as to them, although not necessarily obscene for adults.(14) However, the Government does not have unlimited regulatory powers to protect minors. When a statute has the effect of restricting adults to viewing only material suitable for children, it will be stricken down.(15)

Although Congress cannot prevent adults from viewing material inappropriate for minors, it does have the authority to limit adult access to material that is obscene,(16) transmitted in an inappropriate context,(17) or that creates harmful secondary effects.(18) For example, in Miller v. California,(19) the Court reviewed the conviction of an individual who mailed unsolicited, sexually explicit material in violation of California law.(20) The Court in Miller-constructed the modern definition of "obscene"(21):

[t]he basic guidelines for the trier of fact must be: (a) whether "the

average person, applying contemporary community standards" would find

that the work, taken as a whole, appeals to the prurient interest; (b)

whether the work depicts or describes, in a patently offensive way, sexual

conduct specifically defined by the applicable state law; and (c) whether

the work, taken as a whole, lacks serious literary, artistic, political,

or scientific value.(22)

The Supreme Court views obscenity as completely outside the scope of the First Amendment's protection, and the Government may regulate speech freely as long as the Miller test is fulfilled.(23)

2. Regulation of Speech on Particular Media

Furthermore, the fact that speech is not obscene is not necessarily sufficient to preclude Government regulation. …

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