Youth, Pornography, and the Internet (2002) / Chapter Skim
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4. Legal and Regulatory Issues
4. Legal and Regulatory Issues
Pages 84-114
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From page 84... ...
The U.S. Constitution, state and federal statutes, and regulations issued by executive branch agencies all play important roles.
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From page 85... ...
Building on these values, the Supreme Court has identified several very basic principles that have shaped its interpretation and application of the First Amendment. Three such principles are most directly relevant to the issues of interest to this committee: · First, the Supreme Court has held that the government cannot constitutionally restrict speech because the speech advocates ideas, opinions, or values that the government (or perhaps more accurately the majority of citizens)
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From page 86... ...
They are not exhaustive they do not deal with a host of other First Amendment issues that are largely beyond the bounds of the committee's concern. But they helped frame most of the questions the committee considered concerning the regulation of sexually explicit materials on the Internet.
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From page 87... ...
To avoid confusion, the committee therefore focuses on the three distinct concepts of "obscenity," "child pornography," and "sexually explicit material." How does the concept of "obscenity" square with the First Amendment? Throughout the first half of the 20th century, it was generally assumed that the First Amendment posed no barrier to the suppression of obscene expression.
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From page 88... ...
However, the Court redefined the concept as having three components. Miller concluded that, to be obscene, a work, taken as a whole, and judged by contemporary community standards, must appeal to the prurient interest in sex, must depict sexual conduct in a patently offensive manner, and must lack serious literary, artistic, political, and scientific value.
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From page 89... ...
4.1.3 The First Amendment and Protecting Children from Exposure to Sexually Explicit Material As already noted, even if obscenity can constitutionally be prohibited on the Internet, this does not solve the broader problem of the exposure of children to sexually explicit material because of the very narrow definition of obscenity required by the Constitution. This raises the question of whether there are other steps the government can take, consistent with the First Amendment, to protect children from non-obscene, sexually explicit material.
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From page 90... ...
The Court said that if the government wants to protect children in this context, it must do so by technical means rather than by a total ban on the transmission of such messages, for although some limited numbers of children might be able to defeat these devices, a prohibition would have the impermissible effect of "limiting the content of adult telephone conversations to that which is suitable for children to hear." In Reno v. ACLU,9 decided in 1997, the Court unanimously held unconstitutional the Communications Decency Act of 1996, which prohib7352 u.s.
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From page 91... ...
The lesson of these decisions is this: outside the realm of speech that is constitutionally obscene, the government may not prohibit "indecent" or "offensive" or "sexually explicit" or "profane" speech on the Internet in order to protect children, unless the speech is obscene with respect to minors and government regulation does not unduly interfere with the rights of adults to have access to such material. The challenge is thus to 10See also the following Supreme Court cases.
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From page 92... ...
The Supreme Court has held that "the strength of the Government's interest in protecting minors is not equally strong throughout the [age] coverage.''l3 The constitutional rights of minors, including their First Amendment rights, get stronger as they grow older.
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From page 93... ...
The Supreme Court has held that certain minors have constitutional rights in certain circumstances that trump a general deference to parental authority, for example, in the case of a mature minor seeking an abortionl5 or privacy rights about the use of contraception.l6 Further, it is arguable that mature minors have a First Amendment right to receive information relevant to the exercise of these substantive rights. Whether and in what circumstances a minor has a First Amendment right of access to adult-oriented entertainment Web sites remains an open question.
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From page 94... ...
On the other hand, even a public library is not free to engage in "viewpoint discrimination." For example, in Board of Education of Island Trees Union Free School District v. Pico,~8 the members of a public school board of education decided to remove from the school library certain books, including Soul on Ice by Eldridge Cleaver and Slaughterhouse Five by Kurt Vonnegut, because they were "improper fare for children." The board members described the books as "anti-American, anti-Christian, anti-Semitic, and just plain filthy." The Supreme Court held that this action would violate the First Amendment if the intent of the board members was to deny "access to ideas" with which they "disagreed."~9 It should be noted that an important reason for granting a public library broad (but not absolute)
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From page 95... ...
4.1.7 The First Amendment in Public Schools In the context of public schools, the Supreme Court has expressly recognized, in Tinker v. Des Moines School District,21 that neither "students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." On the other hand, the Court has also recognized that, in light of "the special characteristics of the school environment," public school officials may restrict expression that would "materially and substantially interfere" with the core activities of the school.
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From page 96... ...
Youngs Drug Products Corp.,23 for example, the Court held unconstitutional a federal statute prohibiting the mailing of unsolicited advertisements for contraceptives because the interest in shielding "recipients from materials that they are likely to find offensive" is not sufficiently substantial to justify the suppression of "protected speech." This does not mean that all restrictions on the e-mailing of unsolicited commercial advertisements for sexually explicit Web sites would necessarily be unconstitutional. For example, such a restriction might arguably be distinguishable from Bolger if it focused specifically on material that is obscene for minors under Ginsberg.
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From page 97... ...
Code prohibits the use of any facility or means of interstate or foreign commerce to transfer obscene materials to someone under the age of 16 if the person knows that the recipient is under the age of 16. Whether material is within the restrictions of either of these statutes depends on whether a reasonable person in the community would interpret the work, taken as a whole, to appeal to the prurient interest; whether the work, as a whole, is patently offensive; and whether the work, as a whole and in context, lacks serious literary, artistic, political, or scientific value.25 4.2.2 Child Pornography Statutes in general, Chapter 110 of Title 18 provides for civil and criminal penalties for the production, possession, distribution, and sale of child pornography.
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From page 99... ...
.29 The CDA, enacted as part of the Telecommunications Act of 1996, amended 47 U.S.C. § 223 to prohibit the use of an interactive computer service to send or display, in a manner available to those under the age of 18, any communication that describes or depicts sexual or excretory activities or organs in terms that are patently offensive as measured by contemporary community standards.
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From page 100... ...
(So, for example, an ISP that filtered could not be said to be acting in a "common carrier" mode, and thus might have incurred some liability for the content it made available to the end user.) The CDA provided that service providers could not be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider considers to be "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."32 One consequence of this provision in the CDA is that ISPs cannot be held liable for deciding to refrain from carrying Usenet newsgroups that are, in its judgment, obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
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From page 101... ...
"the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, [that it] is designed to appeal to .
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From page 102... ...
The Supreme Court heard oral arguments on COPA in late November 2001 and is expected to render a decision by the summer of 2002. Note added in proof: On May 13, 2002, the Supreme Court held that COPA's reliance on "community standards" to identify what material "is harmful to minors" did not by itself render the statute substantially overbroad for First Amendment purposes.
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From page 103... ...
CIPA requires schools and libraries that receive federal funds for Internet access from the FCC's E-Rate program,41 the Department of Education, or the Institute of Museum and Library Services to enforce a policy of Internet safety for minors that includes limiting the online activities of those under the age of 17 through the operation of a "technology protection measure" that "blocks or filters Internet access to visual depictions that are obscene, child pornography, or 'harmful to minors."' Accordingly, public schools and public libraries that wish to receive these federal funds must install on computers that have Internet access a specific technology protection measure that blocks or filters access to child pornography, obscene materials, or material that is harmful to minors.42 The technology protection measure must be operative with respect to obscenity and child pornography when adults are using those computers, and with respect to obscenity, child pornography, and material that is harmful to minors when minors are using those computers. (The CIPA also allows, but does not require, giving an authorized person the ability to disable the technology protection measure during any use by an adult to enable access for bona fide research or other lawful purpose.)
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From page 104... ...
4.2.6 The Children's Online Privacy Protection Act The Children's Online Privacy Protection Act of 1998 (COPPA) prohibits the collection, maintenance, and use or disclosure46 of personal information47 from children under the age of 13 on commercial Web sites that are directed at children48 or if the operator has actual knowledge that 4347 U.S.C.
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From page 105... ...
51How to Comply with the Children's Online Privacy Protection Rule, November 1999, available online at |
From page 106... ...
However, if the information is disclosed to third parties or made publicly available, a more reliable method must be used to obtain parental consent. A more reliable method includes such measures as getting a signed form from the parent via facsimile or mail, accepting and verifying a credit card num53How to Comply with the Children's Online Privacy Protection Rule, November 1999, available online at |
From page 107... ...
To regulate the distribution specifically to minors of sexually explicit material that does not meet the Miller test for obscenity, states have often used the phrase "harmful to minors," which derives from Ginsberg. For example, the California penal code Section 313 defines "harmful matter" as matter that, "taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." For the remainder of this report, the term "harmful to minors" should be understood as meaning "obscene with respect to minors" (or equivalently, "obscene for minors")
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From page 108... ...
The defendants cloned as many as 25 million Web pages, including kids' game sites and movie review sites. The United States District Court for the Eastern District of Virginia granted a temporary injunction against these practices.
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From page 109... ...
immediately deactivated nasa.com. In October 2001, the FTC charged an online firm with the use of thousands of "copycat" Web addresses to divert Web users from their intended Internet destinations to one of its sites; in response, the United States District Court for the Eastern District of Pennsylvania in Philadelphia enjoined its activities pending further order of the court.58 These copycat addresses were based on the use of domain names that are confusingly similar misspellings of domain names or famous marks of interest to children.
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From page 110... ...
Further, the agency will launch a public/private education effort in conjunction with various Internet service provider associations. Though the spam in these cases did not involve adult-oriented, sexually explicit material, spam that does involve such materials is a source of many complaints regarding the exposure of children to inappropriate sexually explicit material.
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From page 112... ...
Finally, under the Children's Internet Protection Act, the FCC is responsible for promulgating and enforcing regulations to implement the CIPA.62 4.2.9 International Dimensions Today, the Internet is a global medium that presents challenges to traditional systems of national governance that are based on the existence of geographical borders.63 Because different nations have different sensitivities toward various types of material (e.g., hate, politics, sexually explicit materials) , international consensus on an appropriate regulatory environment for materials on the Internet is hard (if not impossible)
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From page 113... ...
Today, the conventional wisdom seems to be that community standards about sexually explicit material may well have changed to the point that only the most hard-core depictions could any longer be classified as legally "obscene." But this is speculative. Because of the relative dearth of obscenity prosecutions in recent years, it is in fact impossible to say for certain that a more aggressive prosecutorial strategy directed at online "obscenity," as legally defined by the Supreme Court in Miller, could not have a significant impact on the availability of such material on the Internet.
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From page 114... ...
One of the NCMEC's functions is to take reports from the field on child pornography, provide analysis on these cases, and then relay those reports to law enforcement agencies of jurisdiction. To expedite law enforcement action in cases involving ongoing exploitation of a child (and hence calling for immediate intervention by law enforcement to prevent further exploitation)
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