Internet content regulations’ reliance on ‘community standards’ is not practical

From the Summer 2000 issue of The News Media & The Law, page .

In a unanimous decision, a three-judge panel of the U.S. Court of Appeals in Philadelphia (3rd. Cir.) in June upheld a preliminary injunction against enforcement of the 1998 Child Online Protection Act (COPA).

The law, which was Congress’ second attempt to regulate content on the Internet, did not indicate clearly to Internet publishers what material would be acceptable for publication and what material would be “harmful to minors,” the court held.

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The first congressional attempt to regulate content on the Internet resulted in the 1996 Communications Decency Act, which criminalized the conveyance of “indecent” and “patently offensive” material to minors or the display of such material in a manner available to minors.

The law was struck down the next year by the U.S. Supreme Court as unconstitutionally vague and overbroad.

“The breadth of the CDA’s coverage is wholly unprecedented,” the court held in an opinion authored by Justice John Paul Stevens.

“Its open-ended prohibitions embrace all non-profit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. The general, undefined terms ‘indecent’ and ‘patently offensive’ cover large amounts of nonpornographic material with serious educational or other value,” the court held.

Noting that indecency would be judged by “community standards” under the law, the court noted that on the Internet that means that “any communication available to a nation-wide audience will be judged by the standards of the community most likely to be offended by the message.”

In response to the Supreme Court’s ruling, Congress tried again to regulate the Internet by passing the Child Online Protection Act in 1998. Congress said that it had “address[ed] the specific concerns raised by the Supreme Court” when it struck down the CDA in 1997.

The new law, introduced by Rep. Michael Oxley (R-Ohio) in the House and Sen. Dan Coats (R-Ind.) in the Senate, was written “to target only those Web communications made for ‘commercial purposes,'” and Congress sought to define most of the key terms in the statute to avoid the vagueness problem. The scope of the law was also limited solely to material defined as being “harmful to minors.”

After the act was passed by Congress and signed by President Clinton, the American Civil Liberties Union, heading up a coalition of 17 plaintiffs, sued the government in U.S. District Court in Philadelphia, seeking a preliminary injunction barring enforcement of the law. The coalition included, among others, the Electronic Frontier Foundation, the Electronic Privacy Information Center, an online art store and a gay and lesbian online service.

A preliminary injunction was granted in February 1999 by U.S. District Judge Lowell A. Reed Jr., who expressed “personal regret” at granting the injunction since the intent of the law was to protect children.

The government appealed, and a three-judge panel of the U.S. Court of Appeals in Philadelphia (3d Cir.) upheld the injunction in June 2000, finding that the Child Online Protection Act would probably not withstand constitutional scrutiny.

To uphold a preliminary injunction, the court must find that the plaintiff is likely to prevail after a full hearing before the trial court, not that the law is unconstitutional.

The Court of Appeals wrote that it based its finding of likely unconstitutionality on the law’s reliance on “‘contemporary community standards’ in the context of the electronic medium of the Web to identify material that is harmful to minors.”

The court found that an undue burden would be placed upon commercial Web publishers to ensure that the content of their Web site does not violate the law.

“Because material posted on the Web is accessible by all Internet users worldwide, and because current technology does not permit a Web publisher to restrict access to its site based on the geographic locale of each particular Internet user, COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state’s community standards in order to avoid criminal liability,” Senior Circuit Judge Leonard Garth wrote for the court.

The Court of Appeals also held that an undue burden was placed on commercial Web publishers who would have to establish costly age-verification systems to prevent children from gaining access to their Web sites. The age verification would be satisfied by collecting credit card numbers, or some other access code, from visitors to the site. Besides the cost of implementing and administering such a system, the court also found that Web sites would lose business from potential customers who did not want to enter, or did not have, the required identifying access information. And the court acknowledged that some teenagers who fell under the act’s classification of a minor have their own credit cards and would thus be able to skirt the law even if its required age-verification demands were met.

Though the court upheld the injunction, it termed COPA “Congress’ laudatory attempt to achieve its compelling objective of protecting minors from harmful material on the World Wide Web.” Garth repeated the lower court’s holding: “Sometimes we must make decisions that we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”

The Court of Appeals, in upholding the injunction, expressed “our confidence and firm conviction that developing technology will soon render the ‘community standards’ challenge moot, thereby making congressional regulation to protect minors from harmful material on the Web constitutionally practicable.”