Supreme Court Hears Argument in Cyberspace First Amendment Case

On Wednesday, November 28, the question of free expression and First Amendment rights in cyberspace returned to the U.S. Supreme Court, as the justices heard oral arguments in Ashcroft v. ACLU, a case involving the government's second attempt to regulate access to material with sexual content on the Internet.

The Child Online Protection Act (COPA), signed into law in 1998, makes it a crime for any commercial Web site to distribute to a minor material that is "harmful to minors." Those convicted under COPA could be fined up to $50,000 and imprisoned for up to six months. The Third U.S. Court of Appeals last year blocked enforcement of COPA.

The American Booksellers Foundation for Free Expression (ABFFE), A Different Light Bookstore, and Powell's Books are among the 17 companies and civil liberties groups that have challenged the law.

Ann E. Beeson, a lawyer for the American Civil Liberties Union, argued before the court that COPA "threatens to transform this dynamic medium into a medium fit only for children." Opponents of the law have contended that since any material that is posted on the Web can be accessed by minors, this means that an online bookstore could be prosecuted for merely displaying a book excerpt or picture of a book jacket that could be judged "harmful to minors." Under COPA, harmfulness is to be weighed by "community standards," and, therefore, a bookstore would have to assume that it would be judged by the standards of the most conservative community in the country.

In ruling in favor of ABFFE and other plaintiffs, the Appeals Court said that given the "peculiar geography-free nature of cyberspace," the most restrictive community's norms would become the standard for all booksellers.

The Supreme Court overturned an earlier attempt to regulate free speech on the Internet--the Communications Decency Act (CDA)--ruling in 1997 that it unconstitutionally encroached on First Amendment rights.

In defending COPA, Solicitor General Theodore B. Olson argued before the court that Congress had carefully crafted the legislation to answer the court's concerns regarding CDA, and responded to questions from the judges regarding whether "community standards" could be interpreted as "national standards." While Olson noted that the government would be satisfied with a national standard, Beeson contended that "national standards would be an exercise in futility" and argued that software that blocks Web sites with sexually explicit content would be a far less intrusive way for parents and concerned adults to protect children from harmful materials.

A decision in the case is expected next year.

In another case involving First Amendment rights and cyberspace, a December 6 hearing is scheduled in a U.S. District Court in Arizona on a state law regarding material "harmful to minors" on the Internet. On January 30, Judge Alfredo Marquez issued an order staying enforcement of the law, allowing the attorney general's office to amend the law. ABFFE and Changing Hands Bookstore (Tempe, Arizona) are among the same plaintiffs challenging the law. And in Vermont--where ABFFE, the Northshire Bookstore (Manchester Center, Vermont), and a number of other plaintiffs are challenging an Internet harmful to minors statute--the case is proceeding toward a hearing in Federal District Court.

-Dan Cullen