CENSORSHIP AND THE INTERNET
I. Introduction
The traditional method of authoring, publishing, and disseminating facts and ideas
to society has a new accomplice in the Internet. It has all the essential capabilities of the
traditional modes of publication – the text of print media, the audio capability of radio,
the visuals of television, the global reach of satellite – plus it is relatively inexpensive,
directly personal, virtually instantaneous in distribution and substantially unregulated.
Each day, the number of Internet publications grows immensely and dissemination can,
through websites, Internet addresses, e-mails and search engines, reach great numbers of
people with an almost infinite variety of communications and a massive quantity of data
and information. And, most importantly, information placed on the web is available to
almost every user regardless of city, state, or nation – because the Internet has no borders.
While the Supreme Court has been willing to define parameters of Internet usage
by applying intellectual property rights to copyrighted material (See article on copyright),
the Court has been reluctant to restrict content on individual Internet sites based on
original material. As a result, it has afforded the traditional First Amendment protection
of free speech to Internet publications. As in the area of speech, the Supreme Court has
only attempted to censor Internet content and transmission with regard to child
pornography, obscenity, and indecent speech.
In the area of speech, the Court defined obscenity in Miller v. California 413 U.S.
15 (1973) using a three pronged test. The obscenity test asks (a) whether “the average
person, applying contemporary community standards,” Roth v. U.S. 354 U.S. 476, would
find that the work, taken as a whole, appeals to the prurient interest, and (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law, and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political or scientific value. Miller v. California 413 U.S. at 25.
The first two prongs are judged under a community standard, which requires the court to
determine how the material in question is viewed in the community in which it is
presented; the third prong, however, is judged under a national standard, which requires
the court to assess the common view of the country as a whole.
Like obscenity, indecent speech is also measured by a community standard test.
The Supreme Court has defined indecent speech as “offensive as measured by
community standards … sexual or excretory activities and organs.” Sable
Communications of California, Inc. v. FCC, 492 U.S. 115 (1989). The government can
regulate and prohibit indecent speech provided that there is sufficient governmental
interest or where there are alternative forms of communications. For example, the
Supreme Court has recognized that the government’s compelling interest in protecting
minors is a valid ground for restricting certain speech. See e.g. Ginsburg v. New York,
390 U.S. 629 (1968) (holding that a state can prohibit the distribution of sexually explicit
material to children even though those materials would not be deemed obscene if
distributed to an adult).
While it is feasible to apply the community standard test to measure obscenity and
indecency of speech, because the distributor, whether of a radio program, television show
or park demonstration, can probably ascertain its audience, it is much more difficult to
apply the community standard test to measure obscenity and indecency of content placed
on the borderless Internet. Materials available over the Internet are accessible from
virtually anywhere in the world where there is a phone line or now wireless connection;
therefore a person sending information via the Internet must be theoretically aware of
each and every community’s standard of obscenity and indecent speech. See Thomas v.
United States 74 F.3d 701 (6th Cir. 1996) (convicting a California couple of interstate
transportation of obscenity for operating an online bulletin board service from which a
man in Tennessee retrieved images that were obscene by Tennessee community
standards.).
Over the next few years, case law and legislation will determine where the
Internet falls on the spectrum of First Amendment protection with regard to content
regulation. At the moment the courts seem reluctant to restrict the Internet as much as
television and the radio, which the federal government regulates through licensing, but
are willing to restrict the Internet more than newspapers, speeches, and conversations in a
city park . Simultaneously, the courts and legislature are beginning to address the unique
issues relevant to Internet distribution and access. The first step may be deciding who is
liable for sending and therefore restricting the sending of illegal content and the
feasibility of restricting content in the context of evolving technology. See Association
“Union des Estudianted Juifs de France” et al v. Yahoo! Inc., & Yahoo! France, TGI
Paris, Ord. Ref., D. 2000, IR172 (holding that Yahoo! must prevent web users in France
from visiting Yahoo! auction sites that sell Nazi memorabilia after the judge appointed
three international experts to assess the technical difficulties and efficiency of the ISP
provider to screen web users given the available technology).
II. Issues and Short Answer
1. How has Congress attempted to regulate content on the Internet and how has the
judicial branch responded?
a. The Supreme Court has given a high level of first amendment protection to
The Internet. The controlling case is ACLU v. Reno, which held Congress’ first
attempt to regulate the Internet – the Communications Decency Act –
unconstitutional. Since then Congress has passed the Child On-Line Protection
Act. But, this Act too has been challenged; the Supreme Court granted a writ of
certiorari to ACLU v. Ashcroft No. 00-1293, which will decide the
constitutionality of the Child On-line Protection Act.
2. How has the New York State legislature attempted to regulate content on the Internet,
how has the judicial branch responded, and what is the current focus of the N.Y.
legislature’s restrictions on Internet content?
a. Many states, including New York, have passed laws that make it a crime to
display content online that is harmful to minors. The ACLU has successfully
challenged such a law in New York State. Currently there are a few bills in the
docket regarding library Internet use content restrictions that will test the level of
protection New York State will afford the Internet.
III. Previous State of the Law
A. Federal
In 1997 Congress enacted the Communication Decency Act, 47 U.S.C. 223,
(hereinafter the “CDA”) which was passed as part of the Telecommunications Acts of
1996. The Act prohibited the knowing transmission of “obscene or indecent” comments
to any person under the age of 18 (47 USC 223 a1B) and use of the Internet to send or
display any comment or image that “depicts or describes, in terms patently offensive as
measured by contemporary community standards, sexual or excretory activities or
organs” to any person under the age of 18 (47 USC 223 d1B). Both the District Court for
the Eastern District of Pennsylvania and the U.S. District Court for the Southern District
of New York ruled that the Communication Decency Act prohibitions were
unconstitutional. See Reno v. ACLU 929 F. Supp. 824 (E.D. Pa. 1996) (holding that
CDA deprives adults of materials protected by the First Amendment in prohibiting the
transmission of indecent comments). See also Reno v. Shea 930 F. Supp 916 (S.D. N.Y.
1996).
In Reno v. ACLU, 521 U.S. 844, a seven-Justice majority held that the Internet
was entitled to the highest level of First Amendment protection. The Supreme Court
struck down CDA because it was overbroad in violation of the First Amendment. The
Court decided that the prohibition on “indecent” and “patently offensive” transmissions
was so vague that it would create uncertainty among speakers, and, as a result, the Court
held that CDA would have an “obviously chilling effect on free speech.” Reno v. ACLU
521 U.S. at 844. The decision stated that although the government has an interest in
protecting children from potentially harmful materials, CDA pursued that interest by
suppressing a large amount of speech adults had a right to send or receive. Id. The
Supreme Court was especially concerned about chilling informational and educational
sites. Id.
B. New York State
Numerous states including New York State have attempted to regulate the
material distributed to minors over the Internet. The New York Decency Law, Penal Law
235.21(3), which is similar to the Federal Communications Decency Act, became
effective in November 1996. The statute prohibits the use of computer networks to
transmit material that “depicts actual or simulated nudity, sexual contact or
sadomasochistic abuse, and which is harmful to minors.” In American Library
Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997), the United States District Court
for the Southern District of New York issued a preliminary injunction on the New York
Decency Law. The court argued that this law violated the Commerce Clause because the
Act represented an unconstitutional projection of New York law into conduct occurring
outside of New York. As there is no way for a distributor to restrict her communications
from New York recipients, the New York Decency Law extended beyond the limits of
intrastate communication. The ALA v. Pataki court stated that “the Internet is an area of
commerce that should be marked off as a ‘national preserve’ to protect online speakers
from inconsistent laws that could paralyze development of the Internet altogether.” ALA
v. Pataki, 969 F. Supp. 160, 181. The court refrained from deciding the case on the First
Amendment issue because at the time the Supreme Court had heard argument on the
Communications Decency Act but had not yet issued a decision.
IV. Discussion
A. Federal Content Regulation
First, with regard to pornography, the Federal Child Pornography Statute prohibits
the knowing foreign or interstate transportation, by any means, of visual depictions of
minors engaged in sexually explicit conduct that have been converted into computerreadable form. 18 U.S.C. 2252(a)(1). The 104th Congress amended the statute to define
“visual depiction” as data stored on a computer or by other electronic means and to
define “child pornography” as visual depictions that include computer or computergenerated images. This new law prohibits the knowing transmission, receipt,
distribution, or reproduction, including computer reproduction, of child porn in interstate
or foreign commerce. This statute has been held constitutional. Free Speech Coalition v.
Reno 220 F. 3d. 1113 (9th Cir. 2000).
In response to the Court’s constitutional concerns expressed in Reno v. ACLU,
Congress enacted the Child Online Protection Act (hereinafter, “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.” 47
USC 231 (a)(1). Here, “harmful to minors” refers to a communication that is obscene.
Unlike the CDA, COPA has a narrower scope of application and a more precise
definition of prohibited content. While the CDA prohibited Internet transmissions that
were “obscene or indecent” or “patently offensive” 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 only applies to communications made “for
commercial purposes” and only to those who are in the position to select or alter the
content of the communication. In direct response to the Court’s criticism of the CDA,
Congress redefined the good faith defense, which was 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 prosecution by
using reasonable measures that are feasible under available technology. [For a more
extensive comparison of the CDA and COPA see Recent Legislation: Regulating the
Internet, Matthew Baughman, 36 Harv. J. on Legis. 230 (Winter 1999).]
COPA was preliminarily enjoined in ACLU v. Reno 31 F. Supp. 2d 473 (E.D.
Pa. 1999). The Court of Appeals held 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 to the constitutionality issue of COPA (ACLU v.
Ashcroft No. 00-1293). In deciding this constitutionality issue the 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 and 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 testing the
constitutionality of COPA on November 28, 2001. The plaintiffs, who ranged from
mainstream magazines to safe-sex information Web sites, expressed concern over the
subjectivity of just what is harmful to minors or what has literary or artistic value and
over preserving the free and anonymous character of Web communication. See generally
John Ashcroft, Attorney General, Petitioner, v. American Civil Liberties Union, et al. WL
1530256 (2001). 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 materials
that is harmful to them. Id. While the justices appeared to be inclined to agree with the
appeal court’s analysis, they questioned whether the Third Circuit read the law correctly.
Linda Greenhouse, Justices Revisit the Issue of Child Protection in the Age of Internet
Pornography, N.Y. Times, November 29, 2001, at A1. The Court is expected to decide
this case this term.
B. New York State Content Regulation
N.Y. 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 Court of
Appeals held that the 235.22 statute is constitutional because it regulates the conduct of
individuals who intended to use the Internet to endanger the welfare of children as
opposed to the speech of those individuals. People v. Foley, 94 N.Y.2d 668, 684.
Therefore the court avoided applying the First Amendment strict scrutiny test applicable
to content-based restriction.
Currently there are a number of New York State bills regarding content
restriction with regard to libraries. For example, one bill requires libraries to comply with
regulations restricting minors’ access to obscene materials before library systems can
obtain state aid. Bill AO2O96. Another requires 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 Loudon v. Board of Trustees of the Loudoun County Library, 24 F.
Supp. 2d 552 was one of the first court decisions post-Reno. In Mainstream, a public
library had made the decision to use filter software, which blocked access to some sites
that did not contain prohibited materials, on all of the computers with Internet access.
While the circuit court was willing to assume that minimizing access to pornography was
a compelling interest, it did not feel that the filter policy was necessary to further those
interests. In addition, the court stated that there were less restrictive alternatives available
to achieve the same ends. In February 2002, the Third Circuit Court of Appeals in
Philadelphia will hear Multnomah County Library et al., vs. United States of America , et
al., No. O1-CV-1322, in which the ACLU is challenging the Children’s Internet
Protection Act, a federal law that ties crucial library funding to the mandated use of
blocking programs on Internet terminals used by both adults and minors in public
libraries.
V. Future of the Law
The law of content regulation and the Internet will remain unclear until the U.S.
Supreme Court sets definitive boundaries within which the state legislatures and courts
can work. Currently legislators and lower courts are trying to make Internet regulation fit
First Amendment law standards that evolved in the heyday of neighborhood bookstores
and movie theatres. Linda Greenhouse, Justices Revisit the Issue of Child Protection in
the Age of Internet Pornography, N.Y. Times, November 29, 2001, at A1. As a result of
the Internet, however, the world is now much larger. The community of the Internet
crosses state boundaries and it remains to be seen whether state regulation will frustrate
the growth of cyberspace. ALA v. Pataki, 969 F. Supp. 160, 183. It is questionable
whether any state regulation would be an unconstitutional intrusion on interstate
commerce in that states are barred from regulating “those phases of the national
commerce which, because of the need of national uniformity, demand that their
regulation, if any, be prescribed by a single authority.” Gibbons v. Ogden, 9 Wheat. (22
U.S.) 1 (1824).
Taken even one step further, the Internet not only crosses state borders but
country borders. Perhaps, because the Internet is borderless and an individual can send
and retrieve information from the World Wide Web from anywhere in the world, it would
be more practical for international law to set the definitive boundaries of internet content
restriction. Ironically, the day after the Supreme Court heard arguments on COPA the
police in 19 countries took part in a coordinated crackdown aimed at people who
distribute child pornography electronically by raiding homes at dawn. Hoge, 19
Countries Join in Raids on International Pornography, N.Y. Times, November 29, 2001,
at Al1. Thus, international law might be the only way to truly enforce restrictions of
content on the Internet.
VI. Authorities Cited
Miller v. California 413 U.S. 15 (1973)
Roth v. U.S. 354 U.S. 476
Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989).
Ginsburg v. New York, 390 U.S. 629 (1968).
See Thomas v. United States 74 F.3d 701 (6th Cir. 1996)
See Association “Union des Estudianted Juifs de France” et al v. Yahoo! Inc., & Yahoo!
France, TGI Paris, Ord. Ref., D. 2000, IR172
ACLU v. Ashcroft No. 00-1293
Communication Decency Act, 47 U.S.C. 223
See Reno v. ACLU 929 F. Supp. 824
See also Reno v. Shea 930 F. Supp 916 (S.D. N.Y. 1996).
Reno v. ACLU, 521 U.S. 844.
The New York Decency Law, Penal Law 235. 21(3)
American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997)
Federal Child Pornography Statute 18 U.S.C. 2252(a)(1).
Free Speech Coalition v. Reno 220 F. 3d. 1113 (9th Cir. 2000).
Child Online Protection Act, 47 U.S.C 231.
Recent Legislation: Regulating the Internet, Matthew Baughman, 36 Harv. J. on Legis.
230 (Winter 1999).
ACLU v. Reno 31 F. Supp. 2d 473 (E.D. Pa. 1999).
(ACLU v. Ashcroft No. 00-1293).
See generally John Ashcroft, Attorney General, Petitioner, v. American Civil Liberties
Union, et al. WL 1530256 (2001).
Linda Greenhouse, Justices Revisit the Issue of Child Protection in the Age of Internet
Pornography, N.Y. Times, November 29, 2001, at A1.
N.Y. Penal Law 235.22
People v. Foley, 94 N.Y.2d 668, 684. .
Bill AO2O96
Bill AO3256
Mainstream Loudon v. Board of Trustees of the Loudoun County Library, 24 F. Supp. 2d
552
Multnomah County Library et al., vs. United States of America , et al., No. O1-CV-1322,
Linda Greenhouse, Justices Revisit the Issue of Child Protection in the Age of Internet
Pornography, N.Y. Times, November 29, 2001, at A1.
ALA v. Pataki, 969 F. Supp. 160, 183.
Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1 (1824)
Hoge, 19 Countries Join in Raids on International Pornography, N.Y. Times, November
29, 2001, at Al1.