Ashcroft V. American Civil Liberties Union

Article excerpt


Reasonable men might well be forgiven for assuming that a United States Supreme Court decision dealing with children and Internet pornography would entail some titanic clash of the fundamental principles of the opposing partisans. One might fairly expect to see in such a case the champions of unfettered freedom of expression ranged in full array against their arch-enemies, a loose amalgam of Calvinists, Nazis, and sundry other notorious book-burners. Sadly, the Court's recent holding in Ashcroft v. American Civil Liberties Union has deftly averted any such rhetorical Armageddon. (1)

Ashcroft began its tortured existence in late October of 1998, when a number of plaintiffs who either operated sites on the World Wide Web, or provided content for such sites, filed suit in the United States District Court for the Eastern District of Pennsylvania. The plaintiffs alleged that the Child Online Protection Act (COPA), recently passed by Congress, violated their First Amendment speech rights. The ACLU and its allies therefore sought a preliminary injunction to prevent the government from enforcing the act before the case could be tried on the merits. (2)

Enacted by Congress in 1998, COPA's chief object was to restrict children's access to pornography on the World Wide Web by prohibiting "any communication for commercial purposes ... [of] ... any material that is harmful to minors." (3) Under the terms of the Act, the question of whether material was "harmful to minors" was to be determined by the jury on the basis of "contemporary community standards." (4) Nevertheless, the district court held that, because COPA constituted content-based regulation of "sexual expression ... protected by the First Amendment," the statute was "presumptively invalid." The court therefore issued the requested injunction. (5)

The Third Circuit Court of Appeals proved equally unsympathetic to the government. In affirming the district court's judgment, the Third Circuit noted that operators of Web sites possessed no means by which to limit geographically the dissemination of their material. Consequently, the use of community standards to judge whether material was harmful to minors would "[impose] an impermissible burden on constitutionally protected ... speech," since "the most puritan community in any state" would, perforce, become the arbiter of decency on the Internet. (6)

A plurality of a deeply divided Supreme Court disagreed, however, and held that "COPA's reliance on community standards to identify material 'harmful to minors' does not by itself render the statute overbroad for purposes of the First Amendment." The Court accordingly vacated the Third Circuit's judgment and remanded the case, though it left the injunction undisturbed. (7)

Narrow and limited though it is, the Court's holding in Ashcroft is at least consistent with its established community standards jurisprudence The Court has held repeatedly, for example, that "requiring a speaker disseminating material to a national audience to observe community standards does not violate the First Amendment." (8) Furthermore, the Court has made abundantly clear the fact that neither variations in community mores, nor technological limitations on a speaker's ability to direct his material, affects the speaker's duty to observe the standards of the communities into which he sends such material. (9)

While these earlier decisions generally dealt with community standards as applied to speech that was "obscene," and therefore unprotected, the same reasoning must also support the application of community standards in determining what is "harmful to minors." First, if this latter application of community standards is impermissible solely because of a Web site operator's inability to control the dissemination of his material, then the application of community standards to obscene material on the Web must be equally impermissible. …