A New First Amendment Model for Evaluating Content-Based Regulation of Internet Pornography: Revising the Strict Scrutiny Model to Better Reflect the Realities of the Modern Media Age
Garry, Patrick M., Brigham Young University Law Review
In the modern media age, the number of media venues, along with the types of information and programming those venues carry, is exploding. Nowhere is that explosion more evident than with the Internet. On the positive side, the Internet offers a wealth of information and communications opportunities. But, on the negative side, it brings a boundless store of harmful material within easy access of children. In recognition of the destructive effects of such material-especially obscenity and pornography-Congress on several occasions has tried to curb the accessibility of this material to children. The Supreme Court, however, has struck down each attempt using a strict scrutiny approach.1
For example, in Ashcroft v. ACLU,2 the Court struck down Congress's most recent attempt to limit children's exposure to pornographic material through the Internet-the Child Online Protection Act (COPA).3 The Act imposed criminal penalties for knowingly posting, for "commercial purposes," of Internet content that is "harmful to minors" but provided an affirmative defense to commercial vendors who restricted access to prohibited materials by "requiring use of a credit card" or "any other reasonable measures that are feasible under available technology."4 Even though Congress had written COPA less restrictively than its prior attempts to regulate child access to pornography, the Ashcroft Court still found COPA unconstitutional on the grounds that it "was likely to burden some speech that is protected for adults" and that there were "plausible, less restrictive alternatives."5
The Court's majority opinion in Ashcroft is an excellent example of current First Amendment doctrine, which requires that any content-based regulation of speech-regardless of the actual burdens it imposes-be subjected to strict scrutiny by the courts. Under this approach, regulations like COPA almost never survive. As Gerald Günther once put it, strict scrutiny is "'strict' in theory and fatal in fact."6
The CP80 proposal, as oudined in Professor Preston's article, is creative and promising.7 But if enacted, it would most likely be subject to strict scrutiny by the courts. Even though Professor Preston makes a strong case for why the proposal should survive strict scrutiny,8 it is likely that the Court will strike down the CP80 scheme under its traditional application of the strict scrutiny test. However, such a prospect should not automatically condemn CP80 to the storage room of unimplemented creative ideas; instead, the novelty of CP80 should prompt a rethinking of existing First Amendment doctrines, particularly the strict scrutiny approach. In fact, CP80 presents an opportunity to refocus First Amendment jurisprudence in a way that better recognizes the realities of the modern media world.
Part I of this Article outiines the case against the Court's current use of strict scrutiny. This approach hinges on a single factor: whether or not a regulation of speech hinges on a content distinction. Once such a distinction is found, the law is almost always struck down, regardless of the speech burdens actually imposed by the law, whether the subject speech is in plentiful supply in other media venues, or whether the laws would result in a banishment of certain ideas from the public discourse. This myopic focus on content discrimination is outmoded in today's multimedia world and prohibits regulations of speech even when the burdens imposed by the law are slight and the speech remains available and accessible in the broader marketplace of ideas.
Part II of the Article proposes a new judicial model for evaluating content-based laws regulating media programming that is not political speech.9 This new model examines the actual burdens placed on die subject speech. It also considers perhaps the most vulnerable freedom in the current media environment-the freedom of the unwilling recipient to avoid unwanted and offensive media speech. Furthermore, the new model-a variation of the intermediate scrutiny approach now used for so-called contentneutral regulations of speech-takes into account and incorporates the realities of the modern media world. …