"Congress shall make no law ... abridging the freedom of speech." (1)
A very difficult issue facing the United States is applying First Amendment rights in cyberspace. With the motive of protecting children, the government has attempted regulation in this area concerning virtual child pornography and minors accessing pornographic materials online.
Finding that "the use of children in the production of sexually explicit material, including photographs, films, videos, computer images, and other visual depictions, is a form of sexual abuse which can result in physical or psychological harm, or both, to the children involved," (2) Congress passed the Child Pornography Prevention Act of 1996 ("CPPA"). (3) The CPPA expanded the federal ban on child pornography from pornographic images made using actual children to include computer-generated images appearing to be children engaged in sexually explicit conduct. (4) On April 16, 2002, in Ashcroft v. Free Speech Coalition, the U.S. Supreme Court struck down sections of the CPPA as overbroad and unconstitutional. (5)
Finding that minors have access to harmful materials through the widespread availability of the Internet, (6) Congress in 1998 enacted the Child Online Protection Act ("COPA") (7) to restrict access by minors to harmful materials sold on the World Wide Web. This section was carefully drafted (8) to respond to a 1997 U.S. Supreme Court decision, Reno v. American Civil Liberties Union ("ACLU"), (9) that struck down as unconstitutional provisions of the Communications Decency Act ("CDA"), (10) which was enacted by Congress in 1996 to limit the exposure of children to sexually explicit materials online. On May 13, 2002, in Ashcroft v. ACLU, the U.S. Supreme Court upheld sections of COPA as not unconstitutionally overbroad, but the Court expressed no view as to whether other provisions are overbroad, whether the statute is vague, or whether COPA survives strict scrutiny. (11)
Both the CPPA and the COPA were statutes intended by Congress to protect minors. The CPPA was intended to protect minors from the harmful effects of virtual child pornography. The COPA was intended to protect minors from pornography currently available commercially on the World Wide Web. Neither statute currently is being enforced, despite their laudable motives to protect children. This Article will examine both statutes and both U.S. Supreme Court decisions. It also will predict the future of COPA and will recommend further congressional action to protect minors from the harmful effects of both virtual and real child pornography, and from accessing pornography on the Web.
II. CPPA AND ASHCROFT V. FREE SPEECH COALITION
Congress has repeatedly enacted legislation banning sexual exploitation of children. Finding that child pornography was both highly organized and profitable, and exploited children, (12) Congress in 1977 passed the Protecting of Children Against Sexual Exploitation Act. (13) This Act criminalized knowingly using a minor younger than age sixteen to engage in sexually explicit conduct to produce a visual depiction. (14) In 1984, Congress passed the Child Protection Act, (15) which expanded the 1977 Act and did away with the previous Act's requirement that the prohibited material be considered obscene under Miller v. California. (16) The 1984 Act also raised the minor's age from sixteen to eighteen and included not-for-profit trafficking. (17) This law was again amended in 1986 by the Child Sexual Abuse and Pornography Act, which banned the production and use of advertisements for child pornography and created civil liability for personal injuries to children from the production of child pornography. (18)
The Child Protection and Obscenity Enforcement Act of 1988 made it unlawful to use a computer to transport, distribute, or receive child pornography. …