Additional Questions Regarding the Constitutional Analysis of COPA (Child Online Protection Act of 1998) and Other Similar Legislation Likely to Be Passed in the Future

The following questions are of particular concern to me (Bill Boushka, owner of doaskdotell). They are suggested in the spirit of the final questions asked by Judge Reed on January 27, 1999 before he issued his Preliminary Injunction. Of course, I am playing the "devil's advocate," but it is necessary to get all possible questions of interpretation (and, frankly, opinion) on the table for me to know where I stand given any reasonable future course.  Unless otherwise noted, most of these questions originated with me, and they do not necessarily apply to other plaintiffs or other interested parties.  Bill Boushka .

(For Judge Reed's questions see http://www.doaskdotell.com/content/copaqred.htm)

HARMFUL TO MINORS DETERMINATION

  1. Must a non-obscene web element satisfy all three "Prongs" in order to be "harmful to minors?" Is the conjunction intended definitely "and," not "or"?
  2. Does the phrase "patently offensive" in the Second Prong really mean "pornographic"? If so, why did Congress not use the term "pornographic"? Give examples of non-obscene, non-pornographic materials that would be legally "patently offensive" with respect to minors. Would non-pornographic sexual innuendo, used to express an adult moral or social precept effectively, automatically be considered "prurient" with respect to young minors and therefore fall within the First Prong as the law is written? Would government draw the (obvious?) line on HTM with "men's magazine" type material (nude pictures with social commentary)? What about text-only discussions of safer sex practices from a commercial site?  It is amusing that the government points out that tempting videos of Britney Spears do not satisfy the Second Prong!  This point is critical in evaluating Justice Breyer’s dissent in the 2004 opinion. Some attorneys say that “pornography” is undefined in the law, and that the three prongs of COPA are a clumsy attempt to provide a legal definition of the concept.
  3. Does "value to minors" in the Third Prong refer to all minors (under 17) or just to some (older) minors? As a matter of common sense, no adult material would have "value" to very young minors. On fact, in one of its briefs before the Supreme Court the government writes: “That prong of the statute does not incorporate community standards, and it excludes from coverage as a matter of law material that has serious value for a legitimate minority of older minors.”  Does that mean (as a matter of mathematical logic) that the “serious value” prong is really satisfied by material with serious value to “some minors,” that is, a significant fraction of 15 and 16 year olds? If so, could the public maintain that discussions of homosexuality cannot have “serious value” for a significant percentage 15 and 16 year olds?
  4. Is there subject matter that. on its face, would, under this statute, fail the “serious value” test?  For example, most people in the general public strongly disapprove of presently pedophilia to minors (except to warn minors about dangers to them). This is more clear-cut than the attitude of the public towards adult homosexuality (or adult heterosexuality). Would a non-pornographic essay that advocates pedophilia (or, say, lowering age of consent) without being sexually explicit as to language or images be found HTM under the statute?  Would it be constitutional then to force it under the electronic brown wrapper?  There are cultural precedents for widespread public belief t that some very disturbing issues should be kept away from minors altogether, as the way the MPAA treated the film “L.I.E.” because of subject matter alone (with an NC-17).  But note here that the government also admits, in writing about the “third prong”, “The serious value prong of the statute, together with the legal limitations imposed by the other two prongs, confines COPA's reach to material that is clearly pornographic, and excludes from coverage material that contains explicit but serious discussions of sexual issues  and later: “Like those laws, COPA applies to pornographic material such as pictures that appear in Hustler, Penthouse, and Playboy. Like those laws, and unlike the CDA, COPA does not apply to material that has serious value for a legitimate minority of older minors, such as the use of graphic language to make a serious or humorous point, discussions about prison rape, discussions about safe sex, or the kind of artistic paintings of nude subjects that are displayed in the National Gallery of Art. Compare Reno v. ACLU, 521 U.S. at 873, 877-878. Moreover, like the state display laws, COPA's harmful-to-minors standard does not impose an undue burden on protected speech. Instead, its principal effect is simply to require commercial pornographers who already place most of their pornographic material behind adult verification screens to place their pornographic teasers behind those screens as well. COPA's harmful-to-minors standard is therefore firmly grounded in widely accepted and constitutionally sound state harmful-to-minors laws.”  Is this view justified by case law?
  5. Why doesn't the Second Prong make the First Prong redundant?
  6. If #3 (Prong #3) is intended to refer to "all minors," would the use of vulgar words by a commercial site automatically invoke "harmful to minors" requirement for affirmative defense?
  7. Is there any case law that establishes with more precision the meaning of "with respect to minors"?
  8. Could mere mention of a "perverted" sexual act constitute a "representation" (Prong 2) of a sexual act, on the theory that it "brings to mind" a patently offensive image? If a long piece of writing (like a political argument such as my Do Ask, Do Tell book) is predicated upon such "representations" (mention of sex acts, concern over body image or sexual "performance," and polarity) could it be prohibited from unprotected display by COPA?  (Or is a “representation” effectively covered by a “g-string” as in burlesque?)  A term related to the “representation” concern is “implicit content.”  Please see the vocabulary link.
  9. Could some passages in the Bible (such as those supposedly dealing with homosexuality) be deemed "harmful to minors"?
  10. Suppose a 16-year-old high school junior wants to write a civics class term paper on Internet censorship. In order to help him present the facts in a balanced way, his teacher points him to some small sample of borderline materials that some but not all prosecutors believe to be legally "harmful to minors." Could the teacher face prosecution? Is it illegal for the teenager to write the term paper? To publish it on a high school web site?
  11. The government maintains that it wants to require commercial pornographers to put an "electronic brown wrapper" around their sexually explicit pictures, including "teasers." But aren't these teasers legally obscene (even if not normally subject to prosecution when available to adults) already? Why is a "harmful to minors" category necessary to outlaw these?
  12. Some moderately conservative defenders of COPA have maintained that the HTM definition amounts essentially to a characterization of (non-obscene) “soft-core pornography” as compared to (putatively obscene) hard-core pornography. Therefore, COPA essentially is equivalent to placing Playboy in a wrapper and keeping behind the counter away from children in a convenience store. Is this is what is intended by the three prongs? Is a periodical like Playboy (which carries many articles of important political, social and intellectual content, to the point of appealing to many homosexuals as well as to heterosexual men) comparable to a commercial web site that uses a small “seasoning” of adult material to provide a cutting edge in its commentary? Is this the same concept as a “pornographic teaser”?
  13. Following the Playboy example, consider how a retail bookstore or even a convenience store segregates items, either putting “adult” books and magazines in a separate section for adults only, or puts them in wrappers requiring purchase. Generally, only those publications that have pictures of genital nudity (regardless of the social value of other content) are likely to be segregated.  Is this what HTM really means? A book with some explicit language would not be so segregated, particularly if it was a well known classic.  Would the HTM concept lead to the segregation of explicit works of less-known or established writers or publishers?  We are not aware that this has been a problem as a whole with state HTM laws. However, as the Third Circuit points out, the topology of the Internet presents new problems with such segregation.
  14. Is a site containing socially important literature but adult in nature to be compared to an “R rated” movie?  Wouldn’t PG-13 fail the test for “all minors” if available in an uncontrolled fashion at a web site? Some studios make minor script or screenplay editing changes to gain a more lenient rating from the MPAA (or when shown on primetime network television).  Is the same concept applicable for HTM?
  15. The government points out that 1-900 sex phone services must meet uniform national community standards,  Is this relevant?
  16. The government makes this statement in one of its Supreme Court briefs:

. A commercial entity that regularly displays harmful-to-minors material on a nationwide medium obtains the advantages of a nationwide market for its profit-making activities. It is entirely reasonable to require businesses that have made that choice, and have reaped the associated economic advantages, to make sure that their business activities do not cause harm to minors in the communities from which they seek to profit

Actually the market is worldwide and 24x7.  Would this observation  require additional diligence to “protect minors” from a webmaster 9even an individual) when compared, say, even to motion pictures and television broadcast media, where adult materials are shown in specified timespots or places?    If so, is such an interpretation implied by the statute, or is this just a theoretical constitutional question?

  1. In the context of the Internet, what does “taken as a whole” mean?  One file?  The whole domain? The amount of material that a minor has actually likely to read? Does it matter if text is on .gif files, or is dynamic (imported through xml) and is therefore less likely to be searchable or is organized to be less convenient to read as a whole?
  2. (New, Spring  2002) If there is such a notion as a “national standard” for harmful-to-minors determination (especially the idea of what, taken as a whole as legitimate value for some older minors), upon what it that based? The practice of retail book and convenience stores? Movies? (Does an “R” rating (or maybe just NC-17) mean harmful to minors as a paradigm?) Broadcast and cable? Would a trial jury have to determine it and would the jury have to be selected from different sections of the country?  Or could a local jury take instruction to follow a “national standard,” given the precedence with the “value prong” and the supposed specificity of the first two prongs. (Either wayo, is there a “chilling effect”?) Publishers take a “national risk” with obscenity because presumably they have enough experience to judge what is obscene, but does the same hold for HTM?
  3. (New) Does the idea that adults may legally have access to HTM materials defeat the concept of a national standard?
  4. (New) Suppose one asserts that a web publisher may not intentionally design his commercial site to draw interest in genuinely valuable content (with respect to minors) by using small content elements that, viewed in isolation, would be perceived as prurient by minors. This may sound like the “Playboy” example. But would the likelihood that users will, in practice, use search engines and find files on the site, a large percentage of the time, with “adult” search arguments mean that the site was HTM even though it, taken as a whole, certainly has important social value? Keep in mind that the same mechanical possibility does not exist in print, broadcast, or movies.
  5. If the word “lascivious” had been used instead of “prurient” in the HTM prong 1, would the meaning be narrower? (Check the dictionary.)
  6. Suppose a software product were available to identify the geographical location of a customer. If it were fairly expensive to use and took technical skill to install, could small web operators be expected to use it in order to comply with local community standards? (One such product, GeoPoint, is offered at by http://www.quova.com/ but we do not currently have information on price or technical difficulty of use.)
  7. (Jan 2003): Some publishers present books online in non-searchable formats (such as .gif files). This is the case with my DADT books. The standard used by publishers is whether the material is suitable for display to the general public (not just adults) in an unrestricted manner in a conventional bookstore. Theoretically, could a different standard could exist for online display of full book text according to this act?
  8. Marketwatch: (6/1/2005) “The board of the Internet Corp. for Assigned Names and Numbers (ICANN) said it will begin talks on a prospective contract with ICM Registry Inc. about the commercial and technical terms of establishing an ".xxx" domain. It could be operating by the end of the year.”  Could non-pornographic but adult domains be required to use such an xxx TLD? (There is a bill now requiring adult commercial sites with HTM materials to use the XXX tld, go to http://www.doaskdotell.com/content/enough.htm )
  9. Would a prepaid credit card (for a minor) be excluded from being an adult-id card?
  10. Does the presence of ad’s (such as from Google AdSense) make an otherwise personal blog, site or profile commercial? See Paul Sloan and Paul Kaihla, “Blogging for Dollars” and “The 7 Habits of Highly Successful Bloggers,” Business 2.0, Sept. 2006, p. 64.
  11. Do the contextual circumstances of the website owner or author ever affect HTM determination? Would a “Socratic” self-defamation where the author pretends to the protagonist of illegal activity in order to present the consequences of the activity risk appeal to the “prurient interest” with respect to minors? (According to common law, the minor might be legally entitled to believe that the author has a propensity to engage in the behavior described, by analogy with the military “don’t ask don’t tell” law.) Or could other laws (like coercion and enticement statutes, applied in “passive solicitation” situations) be found overbroad if COPA were found to be overbroad?
  12. Especially in conjunction with 27, could more subjective notions of family values or filial responsibility and leadership affect the likelihood that minors could find certain kinds of personal materials “prurient” with respect to Community Standards as explained in the 2002 Supreme Court opinion?    
  13. If a prosecution got down to examining material against the “serious value for minors” prong, would the experience of school systems be relevant? Would the appearance of similar material in a school textbook or curriculum provide a defense? Would its absence from school materials harm the speaker?

COMPELLING STATE INTEREST and "LEAST RESTRICTIVE MEANS" ANALYSIS

  1. Did Congress really intend to regulate only "pornographic teasers" (to put them behind an "electronic brown wrapper") or did Congress envision a need to regulate availability of adult subject matter (such as homosexuality, sexual techniques, condom use, contraception, STD prevention, breast or testicular cancer) from commercial sites to minors? (That is, could some members of Congress intended to prohibit public display of any material that you would not say around small children according to "common sense"?) If so, how would Congress establish its "compelling state interest"? Did Congress really understand that non-pornographic adult material exists? Did Congress intend to prevent a small publisher from enhancing its audience by offering "R-rated" (but non-pornographic and textual only) material for free on the Internet?
  2. Suppose Congress wanted to keep certain non-sexual materials, such as instructions for bomb-making or for drug use, away from minors or from mentally unstable persons. Could it establish a compelling state interest to do so?

However, I note here that a law professor from Southern Illinois University at Carbondale comments:

One probably may not, “consistent with the First Amendment,
restrict protected speech for adults by claiming that doing so is the only
way to protect children. Justice Marshall once wrote that "regardless of
the strength of the government's interest" in protecting children, "[t]he
level of discourse reaching a mailbox simply cannot be limited to that
which would be suitable for a sandbox." Bolger v. Youngs Drug Products
Corp
., 463 U.S. 60, 74-75(1983).”

  1. Does Congress believe it can show a compelling state interest to force Internet content providers to restrict access to adult materials by children regardless of what parents do? That is, may commercial providers be required to make their procedures as fail-safe as possible regardless of what parents do? Does the possibility that parents can install rating systems (Platform for Internet Content Selection) or, even simpler, purchase a "kids' only" facility that limits web sites to a predefined list of child-appropriate sites, figure in to "least restrictive means" analysis?
  2. Could Congress show a compelling state interest to force providers to self-rate their sites (according to PICS) according to a detailed standard of classification (similar to movies) and for browsers and service providers to offer PICS settings?
  3. Suppose this kind of solution was devised: 

· Content providers are forced to tag files (or sometimes subdomains or directories) with adult content (products like Microsoft Word or FrontPage or WordPerfect could develop the menu options to add these taga)

· The customer (age >= 18) provides adult-id or credit card only once for a session (as in a public library or Internet café) or once when setting up an Internet account with an ISP or high-speed access (normally by paying with a credit card). Browsers like Internet Explorer and Netscape Navigator develop hooks to load these adult authentications. Then the site or file with adult content could provide free and convenient access based on the tag and certification loaded into the browser,  This would not discourage adults from using adult sties and would not force individual domains to require logon or individual authentication, a process which a content-provider like me sees as an invasion of the customer’s privacy.  Parents would specifically not provide authentication to kids’ accounts.  This might not comply with COPA as written and might not be “perfect” and would require careful implementation from software providers like Microsoft, but would be much less restrictive to adults and to adult content providers while providing parents with some comfort in controlling the Internet access to adult subjects by their (younger) children. (Note: Microsoft Internet Explorer, for example, offers a “Content Advisor” tool now and I will look into how well it could fit into a strategy like this.)

Would this be acceptable to “both sides”?

  1. Timothy Zick authored a lengthly Westlaw analysis of COPA in the Creigthon Law Review, April 1999, "Congress, the Internet, and the Intractable Pornography Problem." He proposes a way to pass a COPA-style law that passes "least restrictive means" analysis. Such a law would probably

· apply only to pictures and photographs, not to written text

· apply the "artistic, medical, educational or scientific value" test one image at a time and consider the test passed if it is suitable for at least one (presumably older) minor and not "all minors."

· remove criminal penalties

Questions: Would this definition of HTM differ significantly from "obscenity" in practical terms? Would removal of criminal penalties provide sufficient relief for small web operators who (though while "for profit") provide free content and would still face liability for huge civil fines and confiscations (similar to civil asset forfeiture)?

 

7.   What is the current practice of adult-id registration services?  Does the customer or web-operator really have to pay for every hit, or does the customer pay only one fee a year?  To what extent would the use of adult-id’s cause the public to associate a non-pornographic but adult site with commercial pornography?  To what extent could it compromise the privacy of the customer (especially in light of recent anti-terrorist legislation sucha s the 2001 USA Patriot Act?  From the investigation that I have done so far, it appears that most adult verification companies are intended for use by high-volume, high-revenue customers (especially pornographers). I am trying to verify what the government claims about adultcheck and see that it is rather expensive for the customer, at least.

8. Will new technologies (including some developed to oppose identity theft) help create an efficient adult-id process? How about Idology? (not to be confused with the word “ideology”). How about systems that could check (national change of address) NCOA-like (with USPS update techniques like FastForward) databases? Would this compromise privacy in other areas?

 FIRST AMENDMENT and STRICT SCRUTINY

  1. Assume I am a small content provider with a small commercial interest (such as a book to sell). Am I entitled to the same strict scrutiny of my First Amendment claims as a non-commercial individual speaking alone? Could I be required to show supervision, or a pattern of credible behavior, to justify my claims? If my immediate goal is "publicity" (e.g., common law publicity rights) and only later financial gain, does this make any difference? Was the First Amendment originally intended to apply to commercial entities or did it apply more to individuals expecting to assemble collectively? Consider case law applications of "fair use" in federal copyright law.
  2. Presumably, adult businesses were able to prosper before the age of the Internet. Then, do the burdens of COPA become "unreasonable"?
  3. If adult-oriented speech (even originated by commercial providers) is more burdened than non-adult or religious speech, could the possible distortion of public debate or of the political process be considered a First Amendment issue?
   Would non-profit organizations fare better in the analysis of #1 above than for-profits? Does it matter if a site ends in .org (or .gov) rather than .com? Do subdomains (entities without their own ".com" domain names) fare better? 
 Keep in mind that non-profit organizations can still sell materials and operate commercial businesses.
 The wording of COPA possibly suggests this, as with wording in the statute focuses upon a person with
 commercial motives: “with the  objective of earning a profit as a result of such activities 
(although it is not necessary that the person make a profit  or that the making or offering to make such communications
 be the person's sole or principal business or source of    income)
 
Along these lines, it might be possible to differentiate in applying the law according to the form of a person’s
 business.  Would a sole proprietorship be deemed “for profit” if the person did not attempt to take IRS deductions
 on his federal income tax return according to the 3 our of 5 years profitability rule? 
  1. Would it be constitutional to require ISP's to "police" their customers for violent material? How would this affect smaller ISP's?
  2. Does the fact that much self-published speech is "unsupervised" in any way lessen its first amendment protections, in view of the fact that it may be more like to be "dangerous" to unstable or vulnerable elements of society?
  3. Does the fact that recent technological advances have made Internet self-publishing attractive and affordable to “average” individuals with future commercial intentions affect First Amendment application?  Does the First Amendment apply equally to “new” and less expensive media that could not have been available previously? (NEW 3/22/02): Does the “efficiency” of the Internet as a self-publishing and “attention-getting” mechanism affect the application of free speech arguments? For example, is the possibility of using innocuous keywords to attract viewers to pornography from search engines relevant?
  4. When balancing “general welfare” with adult First Amendment claims, do the First Amendment claims always prevail when “in doubt”?
  5. A Star Tribune reporter played “devil’s advocate” with me and asked me what would be constitutionally wrong if I (as a web operator offering both free content and selling books in low volume) had to either give up book self-publishing, or the offering of free content in order to continue publishing on adult subject matter (like gays in the military). That is, accept a “Chinese Wall” principle.  Am I not inventing a “self-promoting” (a la Clive Barker’s hero in Sacrament) argument?  Isn’t speech by individuals with no commercial leverage for their speech the real “free speech”?  Does commercial leverage increase the reach of speech or does it decrease its credibility? Yes, but… If adult subject matter couldn’t affordably be presented at all by “semi-commercial” small web operators, then not only would established well-funded interest groups keep control of the debate, but also certain issues and points of view (like religiously based views) would have an advantage in policy debate and that violates the First Amendment. But one could suggest a bifurcation of the web, where no site could offer both items or services for sale and simultaneously free editorial content about anything (that is, a “free” site would have to be entirely free and dependent on donations).  Believe it or not, this might be constitutional, because it could be defended more in language about consumer protection and public safety than free speech.  I don’t think that anyone in Congress or even the current Bush administration really would want to do this, even if “legal.”              

 See more comments in Our Fundamental Rights,and footnotes.

Address questions to me at Jboushka@aol.com

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