Volume 2006, Issue 6

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

ITEMS OF SPECIAL INTEREST

President Signs the Broadcast Decency Enforcement Act of 2005
Whitehouse.gov, 6.15.2006

11th Circuit Upholds Firing of Fla. Deputies Who Appeared in Online Porn
Daily Business Review on Law.com, Carl Jones, 6.13.2006

NY Court Says Sex Offender Can Be Blocked from Possessing Porn
AP on Newsday, Larry Neumeister, 5.31.2006
Farrell v. Burke, No. 05-1069 (2nd Cir. May 31, 2006)

CASES

Ravenna Rd. Management v. City of Twinsburg, 2006 WL 1644357 (N.D.Ohio Jun 07, 2006) (NO. 04-06CV0698)
Township’s ordinance that left no possible locations for sexually oriented businesses to locate within town limits is held unconstitutional.

US v. Polanco, No. 06-1328 (3d Cir. June 12, 2006)
The Child Pornography Prevent Act makes very clear that the United States may not be used as a conduit for transporting child pornography between foreign nations.

LAW REVIEWS

Constitutional Law-Free Speech and Sex on the Internet: Court Clips COPA's Wings, But Filtering May Still Fly. Ashcroft v. American Civil Liberties Unions, 542 U.S. 656 (2004)
Betsy A. Bernfeld, 6 Wyo. L. Rev. 223 (2006)

Filtering Out Children: The First Amendment and Internet Porn in the U.S. Supreme Court
Mark S. Kende, 3 Mich. St. L. Rev 843 (2005)

Back to Top

CASES

Back to Top

Ravenna Rd. Management v. City of Twinsburg, 2006 WL 1644357 (N.D.Ohio Jun 07, 2006) (NO. 04-06CV0698)

Township’s ordinance that left no possible locations for sexually oriented businesses to locate within town limits is held unconstitutional.

Ravenna sued Twinsburg arguing that its zoning ordinance is unconstitutional, because it fails to allow adult uses to locate anywhere in the city. Ravenna also argued that Twinsburg violated Ohio law and Twinsbug’s Charter by imposing zoning restrictions without putting them to a vote of the people for majority approval. Twinsburg is a town of 18,000 and comprises thirteen squares miles.

Agreeing with Ravenna factually, the district court found that “no forms of adult entertainment entertainment may be offered at any place within the City of Twinsburg unless a conditional use or variance would approved to change or modify the existing zoning classification. “ Pursuant to Renton v. Platyime Theatres, Inc., 475 US. 41 (1986) cities may impose time, place, and manner restrictions regulating the location of sexually oriented businesses “so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” Ravenna argued that the ordinance in question unreasonably limited alternative avenues of communication since no locations were available to sexually oriented businesses. The district court agreed.

Twinsburg argued that the opportunity for Ravenna to apply for a conditional use permit alleviated any constitutional problems in this regard. Citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), the district court rejected this argument:

However it is not sufficient for Defendant to argue that Plaintiff may seek approval . . . when there is no specific time frame for decision and with the possibility that no application for use would be approved.

Schad v. Borough of Mt. Ephraim, 452 U.S. 51 (1981) held that “when dealing with primarily residential or rural communities a court may look beyond the city limits in analyzing the available avenues of communication. “ Twinsberg argued that Schad should control in the instant case. The district court distinguished Schad on grounds that Twinsburg has a larger population and broader variety of commercial interests located within its boundaries compared to the small rural areas considered in Schad.

The court also found that Twinsberg had violated state voting requirements in imposing the zoning restrictions.

Back to Top

US v. Polanco, No. 06-1328 (3d Cir. June 12, 2006)

The Child Pornography Prevent Act makes very clear that the United States may not be used as a conduit for transporting child pornography between foreign nations.

Polanco was traveling from the Netherlands Antilles to the Dominican Republic via the Virgin Islands. While in route, U.S. Customs officials arrested him for possession of child pornography.

The Third Circuit affirmed Polanco’s conviction and sentence for knowingly transporting in interstate and foreign commerce visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S. C. §§ 22529a)(1)(“B) and 2252A(a)(1). The court of appeals rejected Polanco’s claim that his activities did not fall within the ambit of the statutes of conviction because the statutory provisions do not apply to the Virgin Islands. The court held that the term “interstate commerce” used in these statutes includes all U.S. territorial possessions and Polanco was indeed engaged in foreign commerce.

The court observed: “The Child Pornography Prevent Act makes very clear that the United States may not be used as a conduit for transporting child pornography between foreign nations.“

(all abstracts excerpted from law review introductions)

Back to Top

Filtering Out Children: The First Amendment and Internet Porn in the U.S. Supreme Court
Mark S. Kende, 3 Mich. St. L. Rev 843 (2005)

In Ashcroft v. ACLU (hereinafter Ashcroft II), the U.S. Supreme Court in 2004 upheld, on First Amendment grounds, a preliminary injunction against the Child Online Protection Act (COPA). COPA is a federal law that essentially prohibits commercial entities from allowing minors to access pornography on the World Wide Web. During oral argument, U.S. Solicitor General Theodore Olson told the Court that he had prepared for his appearance by entering the phrase "free porn" into an Internet search engine. His computer said "6,230,000 sites available."

In 1997, prior to deciding the Court's initial cyberspace porn case, Reno v. ACLU (hereinafter Reno), several Supreme Court Justices received a first time Internet tour from their law clerks in the Court's library. Now I am not sure which image is more amusing-the Solicitor General googling porn (not to mention the interesting spam and pop-ups he might have started to receive) or the mostly elderly Justices surfing the Web. But despite the seven year gap, these cases show this technology holds sway over the Court. Indeed, the Court ruled unconstitutional the Communication Decency Act (CDA) in Reno, and stopped COPA's enforcement in Ashcroft II.

This paper critically analyzes Ashcroft II. It makes three major points. First, the majority's reasoning is legally and factually questionable. Indeed, Congress drafted COPA to correct the flaws that the Court said existed in the CDA. Thus, Ashcroft II is another example of the Rehnquist Court's judicial hubris vis-a-vis Congress. Ashcroft II also makes it impossible to fathom how Congress can draft legislation that will effectively protect children and pass constitutional muster.

Second, as in Reno, Ashcroft II demonstrates a Court that is overly deferential to the free market. The Court said COPA is problematic because the software filtering technology available in the marketplace can take care of children. Ashcroft II is therefore reminiscent of the U.S. Supreme Court's decision in Lochner v. New York, where the Court celebrated the free market in striking down legislation designed to protect workers. Indeed, the Internet is practically the first technology the Court has embraced quickly, rather than demonstrating fear. Ultimately, the Ashcroft II Court's reasoning has the practical impact of "filtering" out a strong governmental interest in protecting children, hence the title of this paper.

My third point is that the incoherence of the Supreme Court's levels of scrutiny methodology is partly to blame for decisions like Reno and Ashcroft II. Indeed, the conflicting Ashcroft II opinions by Justices Kennedy and Breyer, focused on in this paper, could not be more different and yet they both claim to be using strict scrutiny. My contention therefore is that neither Justice actually uses that classification. Several commentators have recently written illuminating articles about the level of scrutiny problem in other areas of constitutional law.

This paper finishes by proposing that the Court jettison levels of scrutiny analysis in these kinds of First Amendment cases and instead weigh various explicit factors such as COPA's burden on adult speech, COPA's benefit to children, the availability of effective alternatives, and many others. Courts in Canada, Europe, and South Africa call this "proportionality" review. It results in a kind of legal analysis that focuses more on the real value and policy issues at stake, rather than legal formalisms.

Back to Top

Constitutional Law-Free Speech and Sex on the Internet: Court Clips COPA's Wings, But Filtering May Still Fly. Ashcroft v. American Civil Liberties Unions, 542 U.S. 656 (2004)
Betsy A. Bernfeld, 6 Wyo. L. Rev. 223 (2006)

"Ten years ago an English teacher could confiscate a Playboy magazine from a 14 year-old boy in class, and we thought it was the appropriate thing to do." But today, separating a child from a sexy picture can be more complicated. What is the Internet equivalent of a brown paper wrapper on a risqué magazine or a hidden shelf for adult videos in the back of a movie rental store?

In 1998, Congress passed the Child Online Protection Act ("COPA" or "the Act") to protect children from exposure to sexually explicit materials on the Internet. The Act imposes criminal and civil penalties on commercial Internet providers who knowingly post materials on the World Wide Web that are available to minors and harmful to minors under age seventeen. Criminal penalties include fines up to $50,000 and six months in prison. Civil penalties are fines up to $50,000 per violation per day, plus another $50,000 for intentional violations. Content providers are allowed an affirmative defense if they, in good faith, restrict access to their Web sites with some kind of age verification system.

The American Civil Liberties Union ("ACLU"), along with a number of bookstores, Internet providers, and free speech advocates, immediately filed suit against COPA, claiming that it violated the First Amendment "by suppressing a large amount of speech on the World Wide Web that adults are entitled to communicate and receive." The groups asked for an injunction to prevent the enforcement of the Act.

The Government argued that it had a "compelling" interest in "the protection of the physical and psychological well-being of minors by shielding them from materials that are harmful to them." It said minors had wide access to pornographic material on the Internet, either through deliberate searching or by accidentally stumbling upon it. Through COPA, Congress sought "a national solution to the problem of minors accessing harmful material on the World Wide Web" that parental control protections and industry self-regulation could not provide.

The ACLU countered with the charge that COPA's severe penalties were a "bludgeon" that would suppress an enormous amount of constitutionally protected speech for adults. The group said age verification systems would deter up to seventy-five percent of Web users due to privacy concerns, and they would impose significant economic burdens on content providers. Moreover, the measure would not protect children from harmful materials on foreign Web sites, non-commercial sites, and information available through protocols other than http (HyperText Transfer Protocol, the primary method used to convey information on the World Wide Web). More effective, yet less restrictive means existed for protecting children, such as "the use of filtering software, the promotion of Internet education and high-quality Internet material for children, and the vigorous enforcement of existing laws."
After almost six years of litigation, COPA, in 2004, emerged from its second trip to the Supreme Court in Ashcroft v. American Civil Liberties Union ("Ashcroft II"), essentially bound and gagged. In a 5-4 decision, the Supreme Court affirmed the Court of Appeals, upholding the preliminary injunction against COPA because the Government had failed to rebut the plaintiffs' contention that there are plausible less restrictive alternatives to the Act. The Court remanded the case back to the district court for trial on the issues with a strong directive remark: "Filters are less restrictive than COPA." Based on the Court's opinion, it is "highly unlikely that the statute will be upheld on remand."

While Ashcroft II may seem like a slim win based on the close vote and the procedural rather than substantive nature of the decision, it is actually a bell-ringing victory for the First Amendment. Buried within the opinion is the fact that eight of the nine justices agreed that any decisions regarding content restrictions on the Internet should be held to strict scrutiny. This is a solid affirmation of Reno v. ACLU, which held the Internet to be "the most participatory form of mass speech yet developed," entitled to "the highest protection from governmental intrusion."

On the other hand, the Court's strong implication that filters are a preferable alternative to source-based restrictions on the Internet should be a fire alarm for First Amendment advocates. Filters have been found to be ineffective because they overblock substantial amounts of constitutionally protected materials while underblocking harmful materials.

This case note will trace the development of First Amendment case law with respect to the restriction of sexually explicit materials in print, in the broadcast media, and on the Internet, and what special restrictions are in place for children. It will demonstrate that speech on the Internet has achieved the highest protection, which Ashcroft II upholds. It will also examine the vulnerability of that protected status. The case note then will follow Ashcroft II to its logical conclusion by examining the proposed, less-restrictive alternative of filtering. It will reveal the inherent deficiencies of filters as well as the legal barrier that prevents their improvement. It will argue that Ashcroft II's fallback on the software as a technological fix for the problem of sexually explicit material on the Internet amounts to blind hope. The case note will propose that the courts directly address the restrictions filters currently impose on free speech and take steps to eliminate those inadequacies.

[ Back to Top ]