The Child Online Protection Act of 1998 (COPA) and the Supreme Court 2004 Decision

 

On June 29, 2004—the last day of the 2003-2004 term—the Supreme Court extended the original injunction (as issued in February 1999 by a district court in Philadelphia) against the enforcement of COPA. This was indeed on of the term’s “hard cases.” The Court remanded it back to the court of original jurisdiction for a full trial on merits, but held that it was likely a full trial would hold that the law was either vague or overbroad, and likely implied a content-based speech regulation inconsistent with the First Amendment.

 

I am not yet sure whether or how I will participate in the trial, and these notes will offer no speculation to that end. I am not sure how the fact-finding would proceed, and how testimony would be taken and I can offer no real comments on the future civil procedure here.

 

It is clear to me, however, that the problem of reconciling open and free access to publication and receipt of information for adults with the need to protect minors from inappropriate material deserves much more cooperative attention, particularly to the merely technical and administrative problems, from writers, publishers, software vendors (especially majors like Microsoft) and ISPs than it has so far been given. It is even possible for this activity to provide a possibility of employment or income for me, and I make no apologies for that. 

 

I would like to review here my understanding of the problem, especially as it applies to me, and how I interpret the Court’s various opinions in light of my situation. The reader may want to refer to a copy of the text of the law at this link: http://www.doaskdotell.com/content/copaact.htm

 

First, just to review the basic facts.  In May 2002, the Supreme Court had also upheld the injunction, but it had maintained, more or less by analogy with existing law for obscenity, that the use of community standards on the Internet did not necessarily make COPA unconstitutional. It returned the case to the Third Circuit, perhaps challenging the Circuit to find a narrowing construction for the law that would allow it to remain acceptable. As a finer point of law, the “serious value” clause is not affected at all by geographically variable community standards, and with regard to the notion of “prurient interest (with respect to minors)” in the first two prongs, there is increasing informal evidence that a national standard of consensus (comparable to movie ratings or commercial prime-time broadcast) of suitability for minors may be emerging. In the meantime, a few innovative software companies had started working on the possibility of filtering content according to the geographical location of a recipient, although services that do this as of 2002 were still quite expensive.

 

The Third Circuit again overruled COPA on overbreadth on a number of points, with much discussion concerned over the difficulty of defining a whole denominator context for a body of Internet content.

 

 The majority opinion (in the 5-4) 2004 decision, written by Justice Kennedy (for himself, Stevens, Souter, Ginsburg and Thomas), seemed to accept to accept the Third Circuit’s rather literal interpretation of the law.  The majority seemed unwilling to read narrowings into the law not really justified within the text of the Act. The majority held that the affirmative defense offered by the use of adult verification or credit cards very likely would not survive “least restrictive means analysis” in comparison to voluntary recipient content filters (to be installed by parents or school systems). (Another means that could be investigated is content rating.)  The court noted that technology could have changed in the years since the law passed, and could change further given legislative economic incentives. Justices Stevens and Ginsburg also noted that the notion of an affirmative defense might not be enough to prevent the chilling of speech because of the potential criminal penalties.

 

However, Justice Breyer wrote an interesting dissent (joined by O’Connor and Rehnquist) which accepted the government’s narrow interpretation of the law, that it applied only to pornographic teasers harmful even to older minors. Breyer conceded that the law, interpreted this way, probably did not extended proscribed material much beyond obscenity. Furthermore, few, if any, of the plaintiffs had materials considered “harmful to minors” by this standard and would have standing to sue. Breyer did digress to lecture a bit about social responsibility of some web content providers for less savvy parents who cannot be home to supervise their children or who cannot afford filters. But, by his own admission, it is difficult to see what COPA is achieving in any practical sense, and it may be distracting vendors from trying to find better technical solutions to the problem. Justice Scalia wrote a very short dissent, claiming that behavior which panders to sexual interest by material technically non-obscene is still not constitutionally protected.

 

Conceptual Background

 

Since the mid or late 1980s (starting, note, during the Reagan years), technology has steadily progressed to make it easier for new speakers to publish their work in the marketplace and become known. Personal computers, word processors and printers first made desktop publishing cheaper, and by the mid or late 1990s the Internet and World Wide Web would overtake print as the effective way to circulate new materials to the public. By about 1994, some individuals were running their own Internet web servers at home and email and chat groups were becoming common. In 1996, AOL introduced personal publisher (first just images, and then, by October, text), and about the same time it became practical and inexpensive for individuals and very small business to own their own domains on the Internet. I self-published my first book (“Do Ask Do Tell”) and set up a domain to market and support it (hppub.com) in the summer of 1997.

 

I quickly discovered that I could at least many more readers if I placed much or all of my text on the web for free browsing. This technique may be effective for marketing long and “expensive” books like mine. One reason this is effective is the development of powerful search engines like Google.  Furthermore, some ideas in political theory lend themselves to being dissected online in greater depth than is usually found in commercial print media or broadcast. Some ideas, such as those that deal with gay rights (or other areas like abortion) are controversial and disturbing to some people. Furthermore, to fully understand the implications of a political issue like homosexuals in the military, one has to go into detailed and explicit discussions about potentially sensitive areas. This material will be appropriate for adults and more mature older minors, but some parents would understandably object to the idea that such materials could be placed within reach of unsupervised children by new writers or publishers bypassing the normal, slower means of getting their material out, requiring many more resources and money.

 

This point should not be underestimated.  Books with more mature content can be placed in physically separate areas of retail space, outright pornography can be placed in brown wrappers, and even books with more moderately mature content must be read sequentially for salacious material to be found; but on the Internet search engines bypass all that. Furthermore conventional publication, while it gives authors more obvious third-party credibility, is a long-winded and extremely competitive process, while self-publishing, especially on the Internet, has become cheap and available to almost anyone of middle class means.

 

Furthermore, as often debated in court with respect to “community standards,” the idea of what is objectionable varies a lot with people. For some people, ideas alone (as opposed to ideas expressed in an explicit way as in pornography) can be objectionable. Why? Often this is because of a past cultural context. Ideas may suggest religious or racial degradation, or (as with gay issues) they may insinuate more subtle problems like family or blood disloyalty or gender-related failure. A law like COPA may claim to be limited to pornography, in if not carefully crafted a speaker may be targeted mainly because of a sense of insult by some recipients or prosecutors. This could be particularly dangerous for a new speaker who is perceived as not having “paid his dues” first.

 

The natural tendency, then, is to pass a law banning some kinds of material from the Internet.  There has always been a tendency for societies to view some speech as dangerous, all the way back to the time of the printing press and to Martin Luther. During World War I we had sedition laws prohibiting criticizing the draft (despite the First Amendment). So it was, then, in 1996 with the Communications Decency Act, which would punish to transmission or the open public display of any legally “indecent” content on the Internet (either on the Web, or in emails, chat, etc.)  “Indecent” is a lower standard of violation of “obscene” and generally means sexually explicit. In written text, indecent usually comprises explicit descriptions of sexual or excretory acts as well as use of the “seven bad words.”  This was struck down by the Supreme Court in June 1997 as overbroad and a content-based restriction on speech in violation of the First Amendment.

 

At the time, I was somewhat naïve. I suggested in my own 1997 book that an Internet censorship law could be acceptable if it allowed adult content behind adult-id screens. But by 1998, when COPA passed with exactly this provision, I realized the unworkability of such a provision, as becomes apparent as I go through the details of some of the controversies.

 

There was one other “broad” concept regarding “serious value.”  The first three chapters of my book contain some sexually explicit language and passages to show the tension created by sexual issues (including homosexuality) in both the college dormitory environment (especially as it was in the early 1960s) and in the military. These chapters set up my analysis of the military ban debate in 1993. Now, if one imagines the book becoming a film (literally), it would almost certainly earn an “R” rating.  Critics will say, how can you put what amounts to the script of an “R” movie in a public space where children can find it? Is it because you haven’t “made it” in the conventional media world where there would be an infrastructure set up to keep out the kids?

 

At this juncture, I can only go through the individual points regarding the scope of the law as it would apply to me. You can also read my affidavit at this link: http://www.doaskdotell.com/content/afidavit.htm

 

 

The first two prongs

 

These are the two places where “prurience with respect to minors” is introduced. Now, admittedly, experience allows me to accept some narrowing of the statute. The First Prong appears, read literally, to require that the publisher intentionally appeal to the prurient interest of minors, and perhaps not just accidentally do so. The Second Prong seems to require the appearance of sexually explicit pictures or textual descriptions. My original concern was the word “representation” which could have meant that a passage could be illegal if it merely called to mind a sex act without explicitly conveying it. However, experience since 1998 seems to suggest this interpretation is overly strict. Network television often presents controversial material in primetime movies by minor editing cuts (as with Sleepers or A Few Good Men), and gay issues (gays in the military, gay marriage, sodomy laws) are often discussed in primetime network television, and even “Queer Eye for the Straight Guy” is mainstream. So the idea of a “national community standard” probably would save this wording of the statute with respect to my materials, at least—as long as I am willing to self-censor for “bad words” or a few sexually explicit depictions.

 

Commercial Website

 

It is true that most of my material is free, and is intended in the spirit of “open source” or a non-profit motive. It is also true that I work at other jobs (which can bring up other legal issues, like conflict of interest or implied potential breach of confidentiality). Nevertheless, I still have three books for sale in e-commerce markets (I do not now accept credit cards at my own site, as discussed below). It is also clear from my resume and various other materials that I am trying to attract business partners, especially in the motion picture or similar media businesses, in order to eventually earn a profit (and not have to work in another, possibly conflicting, job). This would suggest a commercial motive, and therefore that I might be bound by COPA.

 

Definition of a Minor

 

This may be the trickiest point. COPA simply speaks of “minors” as one universe. The government maintains that a website runs afoul of COPA only if it is harmful even to older minors (prurient for them and lacking in serious value for them).  This may be true of state harmful to minors laws that usually deal with printed materials. Justice Breyer apparently agrees with the government and goes so far as to concede that he must find a constitutional interpretation if possible. But the Third Circuit could not find this in the text itself, and we are talking about a much more efficient but hard-to-control medium, the Web. Presumably, the most literal meaning of the law is this: if a given minor would find a particular website prurient, then that same minor (of whatever age) must find that it has serious value.

 

This whole business of opinion writing makes me think of an SAT reading (multiple choice) test, where the student reads a passage and then has to analyze the passage against a series of tricky possible but inexact interpretations. So there is a certain irony here. During the past few months, I have worked as a substitute teacher. I have noticed the enormous range of maturity among minors, even in any one grade (especially ninth grade, when the kids are supposed to be 14 and where boys are just crossing through the gates of puberty). Students are in school taking English, social studies and math (algebra and geometry) in order to learn how to learn—how to absorb information from sources in their world (and that includes my own writings freely available to the from the Internet), understand what they read and then apply it to other situations—that is, learn to “connect the dots” through abstract thinking—induction, deduction, and association. Mathematics is critical to developing this skill.  So it is not reasonable to expect every ninth grade student to know the context that I intended in some particular passage—they need CNN’s thousand years of history first. (By twelfth grade, yes—but this gets to the miserable performance of students as a whole in reading and math, into controversial topics like No Child Left Behind and special education.) Students also vary in social and ethical maturity. Some will take advantage of a substitute, but others already know that it is not to their advantage to do so.  Students must also learn the subtle challenges that more intellectual freedom bring, as they break away from some patterns that may have been imprinted by family or their peer groups.

 

Taken as a Whole

 

The Internet, by its very topology and by the nuances of the way static and dynamic sites may be searched and accesses, raises the question as to what the denominator for the “whole” must be. But here it way the search engine works is worrisome. A kid who finds a bad word in a search engine may be tempted to focus on the page in front of him on the computer (a single image with the text that he searched, maybe, or maybe one page of text); whereas in print he would have to read a lot of the book to find that page, and presumably learn more of the author’s intended meaning (especially with a topic like safer sex practices). So the notion “taken as a whole” is not particularly reassuring as the statute reads now.

 

Least Restrictive Means

 

At the time COPA was passed, most adult-id cards were expensive and issued only by companies offering “true pornography.” Use of credit cards may raise security issues, if more small businesses process and potentially store them, inviting hackers. Adults generally do not object to using credit cards to view true pornography, but they would be driven away from viewing more “serious” material like mine. I have noticed, starting in about 2002, that most pornographic sites are requiring credit card access already to see any pornographic images at all. Merchant accounts used to be relatively expensive, and impractical unless one has enough commercial transaction volume, but recently they have become cheaper.  Some bars and discos offer Internet cafes with pornography and have effectively screened patrons at entry because of liquor regulations.

 

The Supreme Court is right to suggest that filters, although not perfect, should be examined as a less restrictive solution. For example, they can filter content from offshore sources. I have already discussed the idea of content rating, which could be set up to require some development from browser vendors, some effort by parents, and minor cooperation by webmasters.

 

Implementation

 

I was prepared to accept the idea that COPA might be upheld if understood (as hinted here by combining the possible interpretations of the various provisions) to mean that any idea could be presented but that sexual concepts needed to be presented in as respectful a manner as possible (without “bad words”). That would have meant more self-censoring, and probably removing the flags from those three chapter files that make it easy for a reader to tell what I had censored!  But such a ruling could have been devastating to some other plaintiffs. I also thought that it was possible to send if back for trial and lift the injunction, provided the Justice Department agreed to enforce the law only (with “narrowing construction”) as it hinted in its own briefs, under court supervision.

 

Clearly, the succeeding trial is likely to suggest ways that a future COPA might be crafted to be narrower in scope and with less restrictive means or more easily implemented affirmative defenses. A worrisome potential issue will be compliance verification. This reminds me of other controversial areas of Internet law, especially potential downstream liability for security problems (spam, denial of service attacks, zombies, steganography), where one could imagine the day might come when domain owners might be required to purchase liability insurance or post bonds. In view of the recent proliferation of schemes for identity theft, domain owners will be even less willing to keep customer verification information (for adult-id) on their own domains as this would add to their downstream liability risks. This point seems to have been missed in most of the briefs.

 

Back to home page

 

Back to COPA discussion pre opinion     Note on free content

 

Note: in July 2005, the hppub.com site is being merged into doaskdotell.com.  hppub.com will not exist after July 30, 2005. It is not clear yet whether I will remain a sub-plaintiff.

 

©Copyright 2004 by Bill Boushka subject to fair use.