Special project: Internet Law
Censorship and the Internet
• Introduction
• Issues & short answers
• Previous state of the
law
• Discussion
• Future of the law
• Authorities Cited
|
Censorship and the Internet
IV. Discussion
A. Federal Content Regulation
The Federal Child Pornography Statute prohibits the knowing foreign or
interstate transportation, by any means, of visual depiction of minors
engaged in sexually explicit conduct that have been converted into computer-readable
form.
The 104th Congress amended the statute to define "visual depiction" as
including data stored on a computer or by other electronic means and to
define "child pornography" as visual depiction in the form of computer
or computer-generated images. This new law prohibits the knowing transmission,
receipt, distribution, or reproduction, including computer reproduction,
of child pornography in interstate or foreign commerce. In 2002, the Supreme
Court held §§2256(8)(B) and 2256(8)(D) to be "overbroad
and unconstitutional."
In response to the Court's constitutional concerns expressed in Reno
v. ACLU, 521 US 844 (1997), Congress enacted the Child Online
Protection Act ("COPA"), codified as 47
U.S.C § 231. COPA prohibits the knowing transmission "in interstate
or foreign commerce by means of the World Wide Web [of] any communication
for commercial purposes that is available to any minor and that includes
any material that is harmful to minors."
Here, "harmful to minors" refers to a communication that is obscene. COPA
has a narrower scope of application and a more precise definition of prohibited
content than did the CDA. While the CDA prohibited "obscene or indecent"
or "patently offensive" Internet transmissions, COPA prohibits material
that is "harmful to minors." While the CDA applied to any transmission
on "an interactive computer service," COPA's prohibition applies only
to transmissions "by means of the World Wide Web." Furthermore, COPA's
provisions are restricted to communications made "for commercial purposes"
and apply only to those who are in the position to select or alter the
content of the communication.
In direct response to the Supreme Court's criticism of the CDA, Congress
redefined the good faith defense, introduced in the CDA. While the CDA
allowed an affirmative defense for "good faith, . . . effective . . .
actions" to restrict access by minors to prohibited content, COPA allows
a host to escape liability by using reasonable measures that are feasible
by means of available technology.
COPA was preliminarily enjoined in ACLU v. Reno.
The Court of Appeals for the Third Circuit affirmed the decision, holding
COPA unconstitutional because the "harmful to minors" standard imposed
an impermissible burden on constitutionally protected free speech in at
least two ways. First, to avoid a violation websites would have to impose
a credit card or adult PIN verification, which would burden free speech.
Second, because web publishers do not have the technological ability to
restrict access to specific geographic areas, they would either have to
comply with the most stringent community standard of what is harmful to
minors or forgo communication all together. The Supreme Court granted
a writ of certiorari in the case (ACLU v. Ashcroft No. 00-1293).
In this case the Supreme Court will have to apply the strict scrutiny
standard for content-based restriction on speech and decide whether the
government has a compelling interest in protecting the physical and psychological
well being of children in shielding minors from the influence of indecent
materials. It will also have to decide whether the statute is tailored
narrowly enough to serve this interest or whether there is a less restrictive
means to achieve this end. The Supreme Court heard the arguments on ACLU
v. Ashcroft on November 28, 2001. The plaintiffs, who ranged from
mainstream magazines to safe-sex information Web sites, expressed concern
over the subjectivity of determinations of what is harmful to minors or
what has literary or artistic value and over preserving the free and anonymous
character of Web communication.
The Bush Administration defended the law contending that the statute imposed
a modest burden on adult access to pornographic material and that such
modest burden is outweighed by the government's interest in shielding
minors from material that is harmful to them.
The Supreme Court is expected to decide the case this term.
B. New York State Content
Regulation
NY
Penal Law 235.22 states that "a person is guilty of disseminating
indecent material to minors in the first degree when knowing the character
and content of the communication . . . which is harmful to minors, he
intentionally uses any computer communication system . . . to initiate
or engage in such communication with a person who is a minor and . . .
importunes, invites or induces a minor to engage in [sexual activity]
for his own benefit." Although the language of 235.22 is similar to the
language contained in Penal
Law 235.21(3), which was found unconstitutional, the New York Court
of Appeals held 235.22 constitutional because it regulates the conduct
of individuals who intend to use the Internet to endanger the welfare
of children as opposed to the speech of those individuals.
The court, thus, avoided applying the First Amendment strict scrutiny
test applicable to content-based restriction.
Currently there are a number of New York State bills dealing with content
restriction by libraries. For example, one bill would require libraries
to comply with regulations restricting minors' access to obscene materials
as a condition for receiving state aid. Bill AO2O96. Another would require
that libraries and public schools block or filter material on the Internet
or other networks that is harmful to minors. Bill AO3256. Case law regarding
Internet filter policies in libraries is limited. The Fourth Circuit's
decision, Mainstream Loudoun v. Board of Trustees of the Loudoun County
Library,
was one of the first court decisions post-Reno. The case involved
a public library's decision to use filter software on all of its computers
with Internet access. The software blocked access to some sites that did
not contain prohibited materials. While the circuit court was willing
to assume that minimizing access to pornography was a compelling interest,
it view the filter policy as necessary to further those interests. The
court observed that there were less restrictive alternatives available
to achieve the same ends.
|
